Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
July 17, 2018
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Chargeability of tax/GST - Classification of goods - support services of loading, unloading, packaging, storage or warehousing of agriculture produce - if any processing is done on these products as is not usually done by a cultivator or producer at farm level then these would fall outside the definition of agricultural produce.
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Bio Fertilizer - rate of GST - Bio-Fertilizers, other than those put up in Unit Container and bearing a brand name will covered under Schedule I of rate of GST on Goods and would attracts NIL rate of duty and if the Bio-Fertiliser is put up in Unit Container and bears a brand name, it would be taxable under GST @ 5%.
Income Tax
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TDS u/s 194C - payment to transporters - disallowance made u/s 40(a)(ia) - It is not clear from the records as to whether the assessee had indeed submitted the PAN of transporters before the competent authority as prescribed in section 194C(7) which also requires factual verification. - Matter restored before AO
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Since assessee is not considered to be in the business of construction of airports per se on its own and is only investing as a promoter, it cannot be considered as business activity of assessee. However, necessary expenditure for running day to day activity of the company has to be allowed as a deduction accordingly either u/s. 37(1) or under the head ‘other sources’
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Disallowance of finance costs - proof of business expenses - Share in Joint Venture (JV) - Since assessee is not carrying on any business activity on its own, the question of allowing the deduction u/s. 36(1)(iii) of the Act does not arise as there is no business activity and the investment itself cannot be considered as ‘for the purpose of business’ as there is no business activity at all.
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Deduction on account of portfolio management (PMS) fees allocated towards the Short term capital gains on sale of shares u/s 48 - the same not being an expenditure incurred wholly and exclusively in connection with the transfer of the shares out of which STCG had arisen to the assessee - expenditure not allowed.
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Sale of property - bifurcation in to land and building - Long term / Short term capital gain - assessee failed to submit the basis for valuation of property, it is difficult for us to render any conclusive finding on the claim made by the assessee.
Customs
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Exemption from customs duty on import of various items falling with the chapters 32, 34, 38, 83 or any other Chapter - Government extends the scope of exemption subject to conditions - See Sr. no. 229 and condition no. 21 of the notification No. 50 /2017
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Restriction on import of peas (yellow peas) - advance payments were made against import - The transitional arrangement, which has been clarified by this trade notice does not contravene the substantive provisions of the notification or section 3 of the FTDR Act in the Central Government.
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Malafide and suppression of fact, misdeclaration, fraud etc. cannot be alleged against the transferee, against the DEPB licence, therefore, demand for the extended period cannot be raised against the transferee of the licensee.
DGFT
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Accountability of inputs where Advance Authorisations are issued on net to net basis for parts/ components- reg.
Corporate Law
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Central Government constitutes additional Benches of the National Company Law Tribunal (NCLT)
State GST
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Clarification on taxability of custom milling of paddy - Milling of paddy is not an intermediate production process in relation to cultivation of plants. - Rate of GST is 5%
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GST is not leviable on General Insurance policies provided by a State Government to employees of the State government/ Police personnel, employees of Electricity Department or students of colleges/ private schools etc.
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Supply of goods or services or both between related persons or between distinct persons as specified in Section 25, when made in the course or furtherance of business, even if, without consideration, attracts GST.
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Mere cutting and packing of fabrics into pieces of different lengths from bundles or thans, will not change the nature of these goods and such pieces of fabrics would continue to be classifiable under the respective heading as the fabric and attract the 5% GST rate.
IBC
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Corporate insolvency process - What is the reason for default of payment cannot be a ground to reject the application under Section 7, as the Adjudicating Authority is only supposed to see whether the application is complete or not and whether there is any ‘debt’ or ‘default’
Central Excise
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Valuation - Syrup - There is no authority for inclusion of the cost of cups, Co2 gas and AMC charges of the vending/dispensing machine in the assessable value of the syrup.
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Classification of Laltel and Janma Ghunti - whether the goods classifiable under Chapter Sub-heading 3003.39 which pertains to the Ayurvedic Medicines or under Subheading 3003.39 but under Chapter 33.01 as aqueous distillate of essential oil?
VAT
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Liability to pay certain sums on the petitioners in their capacity as Directors - The existence of a Director and the company is independent of each other. Unlike a partnership firm, the company does not cease to exist merely because persons like the petitioners are not associated with it.
Case Laws:
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GST
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2018 (7) TMI 967
Chargeability of tax/GST - Classification of goods - support services of loading, unloading, packaging, storage or warehousing of agriculture produce - goods which comes for storage (Group A to Group G of Annexure A) - whether agricultural produce or not? - rate of GST - Cold Storage services - N/N. 11/2017 Central tax (Rate) dated 28/06/2017 and N/N. 12 2017 -Central lax (Rate) dated 28/06/2017. Whether the goods as mentioned in Group A to Group G of Annexure A which comes for storage will come under the definition of agricultural produce or not? - Whether the supply of Cold Storage services by the applicant firm to the goods as mentioned above in the table as Group A to Group G. attracts Nil rate of duty or not as per N/N. 11/2017 Central tax (Rate) dated 28/06/20172017 and N/N. 12 2017 -Central lax (Rate) dated 28/06/2017? Held that:- As per N/N. 12/2017 Central tax (Rate) dated 28/06/2017, Sr. No. 54 in the table therein, Central tax on the intra-State supply of services of description “Support services to agriculture, forestry, fishing, animal husbandry” is exempt - Once the products attains its first marketability for the primary market all other subsequent processes on produce leading to value addition and subsequent sale belong to the realm of secondary market thereon refraining the produce to fall under the category of ‘Agricultural Produce’ as defined in Notification. Goods as per annexure A (Group A to G) are discussed as follows:- Annexure A (Group A) - Fennel(Saunf), Coriander(Dhaniya), Cumin Seeds (Jeera), Carom Seeds(Ajwain) ,Fenugreek Seeds(Kasoori Methi),Mustard Seeds(Sarson),Bn)vvn Mustard Seeds (Rai),.Nigella Seeds(Kalonji),Poppy Seeds(Posara Dana) - Held that:- If no further processing is done on above mentioned goods or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes marketable for primary market .then the same would fall in the definition of agricultural produce given in aforesaid Notification and exemption would be available. Annexure A (Group B) - Turmeric (Haldi), Dried Ginger (Sonth) - Held that:- Processed goods mentioned in Group B do not belong to produce which are being sold in primary market and processes involved lead to considerable value addition indicating change in essential characteristics - goods mentioned in Group B do not fall under the definition of “Agricultural Produce’. Annexure A (Group C) - Tamarind - Held that:- Tamarind when harvested from tree consists of brittle outer shell which encapsulates the pulp and enclosed seed which in turn are sold by farmer in primary market. Shelling and removal of seeds to obtain the pulp is usually done by specially designed machines. Hence inner pulp without shell and seeds do not fall under the definition of Agricultural Produce’ as it loses its essential characteristics. Annexure A (Group D) - Dry mango ( Sukha Amchur) - Held that:- Green/raw mango, green kathodi. kachha amla. gila Singhada. hara Matar arc harvested by farmer fresh and brought to primary market(mandis) from where its bought by traders/processors who intern under take certain specific processes such as washing , cutting, shelling, cleaning, drying, packing etc. These processes lead to a considerable value addition as compared to that of product sold in primary market which is in itself reflection of change in there essential characteristic hence the above cannot be characterized as Agricultural produce. Annexure A (Group E) - Cinnamon (Dalchini), Gum (Gond), Arjuna Chaal ( Arjun Chaal) - Held that:- In all these goods, some processing is done to make it fit for consumption - Hence as per definition they too don’t fall under the category of Agricultural Produce. Annexure A (Group F) - Groundnuts (Mungfalli), Coconut (Copra Gola) - Held that:- In both the cases farmers are not usually involved in processing of product. Thus groundnuts without shell commonly called as Singhdana (ground mil seeds) and coconut without shell known as Copra gola do not fall into catogary of Agricultural Produce. Anncxure A(Groun G) - Dry fruits such as Fig ( Anjeer) Almond (Badaam), Walnuts ( Akhrot), Pistchio ( Pista), Lotus Seed Pop (Phool/Tal Makhana) etc. - Held that:- Products mentioned in Group G are processed by which the loose their essential characteristics - Hence do not fall under category of Agricultural Produce. Ruling:- Goods mentioned under Group A fall under the definition of Agricultural Produce in terms of the aforesaid notification and so supply of cold storage service in relation to these is exempt from the levy of GST . However if any processing is done on these products as is not usually done by a cultivator or producer at farm level , then these would fall outside the definition of agricultural produce as given in the aforesaid Notification and in that cast-supply of cold storage service in relation to these would remain chargeable to GST. Goods mentioned under Group B to G are not Agricultural produce in terms of the aforesaid notification and so the supply of cold storage service in relation to these would remain chargeable to GST.
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2018 (7) TMI 966
Transitional Credit - migration to GST Regime - IT grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST portal - Held that:- The complete procedure has been prescribed for redressal of grievance which the petitioner has raised in this writ petition, particularly of non-uploading of FORM TRAN – 1 due to technical glitches. Apart from this, the State Government – Commissioner, Central Excise / GST has issued order dated 5-4-2018 in which Nodal Officers have already been appointed by the State Government. The petitioner is directed to approach the Nodal Officer of Korba i.e. Assistant Commissioner, State GST, Korba Circle-1 within four days from today by filing representation along with all necessary documents for redressal of his grievance and in turn, the said authority would consider and dispose of the same following the procedure laid down in para 8 of the circular dated 3-4-2018 and would take decision accordingly. Petition disposed off.
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2018 (7) TMI 965
Classification of goods - Bio Fertilizer - rate of GST - Whether the Bio Fertilizer covered under the definition of Organic Manure (HSN code 3101) and What is the rate of GST applicable on Bio Fertilizer if it is not covered under Organic Manure (HSN Code: 3101)? Held that:- Bio fertilizer is a substance which contains living micro organisms which, when applied to the seed, plant surfaces or soil colonizes the rhizosphere or the interior of the plant and promotes growth by increasing the supply or availability of primary nutrients to the host plant. Bio-fertilizers add nutrients through the natural processes of nitrogen fixation, solubilizing phosphorus, and stimulating plant growth through the synthesis of growth-promoting substances. Bio-Fertilizers, other than those put up in Unit Container and bearing a brand name will covered under Schedule I of rate of GST on Goods and would attracts NIL rate of duty and if the Bio-Fertiliser is put up in Unit Container and bears a brand name, it would be taxable under GST @ 5%. Ruling:- The goods (Bio Fertilizer or Organic Manure); other than those put up in Unit Container and bearing a brand name; will be covered under Schedule I of rate of GST on Goods and attracts NIL rate of duty & The goods (Bio Fertilizer or Organic Manure); put up in Unit Container and bearing a brand name, will be taxable under GST @ 5%.
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Income Tax
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2018 (7) TMI 964
Penalty u/s. 271(1)(c) - claim for full depreciation on windmill - assessee failed to produce the lorry receipts, octroi receipts and other proofs of transportation of goods to show that the machine did actually reach Jaisalmer before 30.09.2004 - Held that:- SLP dismissed.
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2018 (7) TMI 963
TDS u/s 194H - non-deduction of tax at source for the amount of discount/commission to the advertising agency - principal to principal basis - Held that:- SLP dismissed.
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2018 (7) TMI 962
Violation of the principles of nature justice - CIT-A accepting additional evidence - CIT-A accepting the additional evidence in the form of the statement of one of the directors of the respondent-assessee - Held that:- The Special Leave Petition is dismissed - However, the question of law is kept open.
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2018 (7) TMI 961
Set off of unabsorbed depreciation pertaining to A.Y. 1997-98 against the income of A.Y. 2007-08 which is beyond eight years immediately succeeding the year for which the depreciation allowance was first computed - Held that:- SLP dismissed.
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2018 (7) TMI 960
Reopening of assessment - assessment done on the basis of material found during the course of survey and not on the basis of annulled assessment u/s 143(3)- Held that:- SLP dismissed.
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2018 (7) TMI 959
Grant of deduction under Section 80-IB - conditions for qualifying as a small scale industry was to be fulfilled in the initial year alone and not on year to year basis for grant of deduction - Held that:- Special Leave Petition is dismissed on the ground of delay.
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2018 (7) TMI 958
Addition u/s 68 - undisclosed cash credit - genuineness of transaction not proved - Held that:- SLP dismissed.
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2018 (7) TMI 957
Addition on the ground of unexplained construction and working in progress expenses - profit estimation - no books of accounts and supporting bills/vouchers were maintained by the assessee at the time of search - Held that:- SLP dismissed.
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2018 (7) TMI 956
Penalty u/s 271(1)(c) - wrong claim of deduction u/s 80IB - revised return so filed is also a valid return filed within the stipulated time - Held that:- SLP dismissed.
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2018 (7) TMI 955
Entitled to claim deduction u/s. 80IA - claim on the total income after excluding profits (“deduction”) derived from export business of the two new industrial undertakings where 80HHC claim is allowed - Held that:- For the period prior to Assessment Year 1999-2000, the appellant would be entitled to claim deduction under Section 80IA of the Act on its entire profits without excluding the deduction available under other heads of Chapter VI A Part 'C' of the Act. Our above view is fortified by the fact that an identical fact situation, in Rochiram & Sons (2004 (7) TMI 75 - RAJASTHAN HIGH COURT) and General Optics (Asia) Ltd. (2008 (12) TMI 191 - MADRAS HIGH COURT) have held that prior to Assessment Year 1999-2000, the benefit of Section 80IA of the Act is available without exclusion of the deduction claimed under Section 80HHC of the Act. Even on being specifically asked, the Revenue was not able to inform us whether the above two decisions have been appealed to the Apex Court and the result thereof, if any. - Decided in favour of the appellant assessee Applicability of provisions of Section 80IA(9A) for assessment years 1997-98 and 1998-99 - Held that:- s held by the Supreme Court in DCIT Vs. Core Health Ltd.[2008 (2) TMI 8 - SUPREME COURT OF INDIA] that when a provision is introduced with effect from a particular date, then it would not have retrospective effect unless it is expressly stated to be so. In this case, sub-section 9A of Section 80IA of the Act was introduced w.e.f. 1st April, 1999. Thus, it cannot have retrospective effect to impact the assessment the subject Assessment Year 1997-98.- Decided in favour of the appellant assessee
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2018 (7) TMI 954
Reopening of assessment - non supply of reason to believe - Non speaking order - Held that:- The course adopted by the learned Assessing Officer rejecting the application for furnishing reasons to believe without supplying the reasons to believe, is contrary course outlined by Their Lordships in GKN Driveshafts [2002 (11) TMI 7 - SUPREME COURT] the rebuttal order dated 2-8-2017 is quashed and the Assessing Officer is directed to furnish reasons to believe within a period of six weeks and thereafter, the petitioners will file objections within four weeks and thereafter, the Assessing Officer consider and dispose of the objections by a speaking order within reasonable time
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2018 (7) TMI 953
Capitalize the interest expenditure incurred towards 'Lucky Shoppe' acquired as stock in trade - Held that:- It is an undisputed position that the appellant-assessee has filed return of income declaring income under the head income from business. The appellant has various projects executing construction projects and, therefore, interest expenditure is to be allowed as deduction to arrive at profits and gains of business or profession of builders carried out by the Appellants. It is not a case where the only project of the appellant was the Lucky Shoppe project Admittedly, in this case the business of the Appellant as developer had already commenced and income offered to tax. We find no merit in the Revenue's objection that these are issues of fact, which this Court should not go into as the finding of fact, by the Tribunal is final. We have decided this issue on a question of law viz. applicability of Section 36(1)(iii) of the Act. - decided in favour of the appellant-assessee and against the respondent-revenue.
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2018 (7) TMI 952
Demand of interest u/s 206C(7) - chargeable from the assessee till the date of filing of return of income - Liability to make TCS u/s 206C(1C) r.w.s 206C(6) - Held that:- Undisputedly, the assessee is an AOP and the contract for collection of toll was given to its member i.e. M/s JV Kulkarni & Friends Associates, Buldhana. CIT(A) had already concluded that no demand u/s 206C(1C) lies in the case of assessee. Even otherwise the provision of Sec. 206C(7) of the Act were not applicable to the earlier years clause of section 206C(7) of the Act with regard to charging of interest was introduced by Finance Act, 2012 and was thus not applicable to any years prior to that. AOP and its members are not separate entities, therefore no TCS was required to be collected from its member. Even, in the remand report, CIT(A) has admitted that assessee was not liable to make TCS u/s 206C(1C) r.w.s 206C(6), thus there was no question of charging interest u/s 206C(7) of the Act. More particularly, the proviso clause with regard to charging of interest u/s 206C(7) of the Act was introduced by Finance Act, 2012 and since the present case pertains to AY 2009-10. Therefore, the assessee was not covered under the said provision, hence, was not liable to pay interest. We order accordingly and also these grounds raised by the assessee.
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2018 (7) TMI 951
TPA - inclusion/exclusion of comparables - Held that:- Assessee along with its global partners was involved in outsourcing to companies and large global corporations to create dedicated and customised designed Indian facilities, for providing remote delivery of business process services, thus companies functionally dissimlar with that of assessee need to be deselected from final list.
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2018 (7) TMI 950
Maintainability of appeal - tax effect - monetary limit - Held that:- Tax effect involved in the present appeal is less than ₹ 20 lacs as stated by the Ld. Counsel of the assessee. Therefore, the present appeal filed by the Revenue is dismissed.
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2018 (7) TMI 949
Disallowance of remuneration paid to partners - method of prescribed under the Provisions of Section 40(b)(v) - Held that:- In the present case, the Hon’ble Delhi High Court’s decision in case of Vaish Associates [2015 (8) TMI 855 - DELHI HIGH COURT] will be applicable. The Clause mentioned in Vaish Associates case is in toto similar in the present case for partnership deed relating to remuneration of the partners. Therefore, in light of this the CIT(A) as well as the Assessing Officer has not taken a proper cognizance of the Clauses given under the partnership deed in consonance with the provisions of Section 40(b)(v) of the Act. Therefore, we set aside the order of the CIT(A). The appeal of the assessee is allowed.
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2018 (7) TMI 948
Disallowance of interest expenses - CIT-A deleted the disallowance - assessee has pleaded that it has sufficient interest free funds out of which it could easily advance these interest free loans to the sister concerns. - Held that:- It is pertinent to observe that in the assessment year 2006-07, the assessee firm was having interest free funds of ₹ 1,59,23,2625/- whereas at the close of the account, advance outstanding against the name of Antai Balaji Ltd was of ₹ 24,22,185/-. Similarly in the assessment year 2007-08, the assessee was having interest free funds of more than ₹ 4.63 crores against the outstanding of ₹ 24,22,185/-. Similar is the position with regard to the assessment year 2008-09. The assessee was having sufficient interest free funds out of which it could give interest free funds to associate concerns. The ld.CIT(A) has rightly deleted the addition Disallowance of equipments hire charges and warehouse rent charges - CIT(A) has deleted disallowance by holding that during the course of search no incriminating material was found showing excess payment - whether there is any income from this activity, and if it has income, then expenditure of this nature has any nexus with this gross receipt? - Held that:- AO nowhere considered whether the activity undertaken by the assessee gives rise to income of more than ₹ 4.51 crores in the assessment year 2007-08 and ₹ 4.88 crores in the assessment year 2008-09 would require expenditure. AO has made disallowance without any application of mind in sweeping manner. He has not made reference to any seized material found during the course of search and also not made any analysis of business needs and the expenditure debited by the assessee. He has simply disbelieved claim of the assessee on the ground that the expenditure were debited on the last date. To our mind, this approach of the AO is unacceptable.CIT(A) has considered the issue in right perspective and rightly deleted the addition - assessee appeal allowed
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2018 (7) TMI 947
Disallowance of claim of expenses in respect of income from interest - necessary evidence to claim expenditure which was incurred wholly and exclusively for the purpose of earning such interest income - Held that:- In the present case, the assessee has not led any evidence regarding expenditure incurred to earn such interest income. The assessee has only relied on the order of the Tribunal and claimed 10% of the total interest income to be allowed as expenditure incurred towards earning of such interest income. But there is no basis for such estimation. The assessment in this year was made u/s. 143(3) of the Act by calling for details like books of accounts etc. and it was not best judgment assessment. Then, it is the duty of the assessee to produce necessary evidence in support of the claim of the assessee. It is the primary duty of the assessee to discharge the burden cast on it which it failed to do so. Simply, the assessee cannot claim deduction on estimated basis. The basis on which the Tribunal had come to its conclusion for the assessment year 1985-86 would not help this issue. In our opinion, it is appropriate to remit this issue to the file of the Assessing Officer to allow that expenditure supported by vouchers and bills for incurring of that expenditure. Addition as interest accrued - Held that:- Admittedly, this issue was considered by the High Court of Kerala in assessee’s own case [2017 (12) TMI 1364 - KERALA HIGH COURT] as held the interest income on Bank deposits is hypothetical income and that the assessee is entitled to get the interest excluded from assessment. The question raised is thus answered in favour of the Revenue and against the assessee.
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2018 (7) TMI 946
Disallowance of deduction claimed u/s 10AA in respect of interest income - Held that:- Assessee’s claim of deduction u/s 10AA of the Act in respect of interest income has to be considered keeping in view not only the provisions contained under section 10AA of the Act read with SEZ Act, 2005 but also in the light of the ratio laid down in the decisions relied upon by the assessee. None of the Departmental Authorities have done that exercise. That being the case, we are inclined to restore the issue to the Assessing Officer for de novo adjudication after due opportunity of being heard to the assessee - Decided in favour for statistical purposes. Disallowance of deduction under section 10AA of the Act in respect of unrealized export turnover - Held that:- unlike sub–section (3) of Section 10A and section 10B of the Act fixing certain time limit for bringing the export sale proceeds to India, there is no such restriction imposed under section 10AA of the Act. At the same time, section 155(11A) of the Act permits amendment of deduction claimed under section 10A, section 10B and section 10BA of the Act on realization of export sale proceeds. The said provision is totally silent insofar as it relates to realization of export sale proceeds under section 10AA of the Act. However, in case of M/s. Dania Oro Jewellery Pvt. Ltd. [2018 (1) TMI 240 - ITAT MUMBAI] restored the issue to the Assessing Officer for fresh adjudication. Since, the aforesaid decision of the Co–ordinate Bench is on identical issue of deduction claimed under section 10AA of the Act, respectfully following the same, we restore the issue to the file of the Assessing Officer for fresh adjudication. Disallowance under section 40(a)(ia) - Held that:- the amount in dispute was paid during the relevant previous year. However, as held by the Hon'ble Supreme Court in Palam Gas Service (2017 (5) TMI 242 - SUPREME COURT), the provisions of section 40(a)(ia) of the Act covers not only the amounts which remained payable at the end of the year but also the amount which were paid during the relevant previous year without deduction of tax at source. In view of the aforesaid, we do not find merit in the ground raised, hence, it is dismissed.
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2018 (7) TMI 945
Deduction u/s 80P(2)(a)(i)denied - reasons for denying the benefit of deduction was that the assessees were doing the business of banking - Held that:- We find that an identical issue was considered in the case of ITO v. The Chengala Service Cooperative Bank Limited [I2018 (4) TMI 339 - ITAT COCHIN] as held when a primary agricultural credit Society is registered as such under the Kerala Co-operative Societies Act, 1969, such society is entitled to the benefit of deduction u/s 80P(2) of the Income-tax Act. Assessing Officer was not competent and did not possess the jurisdiction to resolve / decide the issue as to whether the assessee was a 'Primary Agricultural Credit Society' or a 'Co-operative bank', within the meaning assigned to it under the provisions of the Banking Regulation Act and to take a contrary view especially in view of the Explanation provided after the clause (ccvi) of section 5 r.w.s Section 56 of the Banking Regulation Act. - Decided in favour of assessee.
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2018 (7) TMI 944
Disallowance of commission expenses - addition sustained simply on the basis of statement recorded during survey/search - Held that:- Respectfully following the decision in the case of the assessee’s sister concerns M/s. D.S. Agencies and, M/s. Usha Distributor [2015 (12) TMI 1459 - ITAT MUMBAI] as held Assessing Officer has made addition purely on the basis of statement made during the course of survey u/s 133A, which was later on retracted by the assessee, therefore, we are of the considered view that any addition made on the basis of these statements is without any basis and deserves to be deleted as there is no corroborative materials on record. It seems that addition has been made merely on the basis of statement/presumptive basis and no corroborative material has been brought on record. Presumption cannot take the shape of evidence, however, strong it may be. - Decided in favour of assessee
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2018 (7) TMI 943
TDS u/s 194C - payment to transporters - disallowance made u/s 40(a)(ia) - Held that:- There is no evidence on record to prove as to on which date the assessee herein had submitted the PAN before the competent authority as mandated in section 194C(7) of the Act, which aspect requires factual verification by the ld AO. It is also not clear from the records as to whether the assessee had indeed submitted the PAN of transporters before the competent authority as prescribed in section 194C(7) which also requires factual verification. We are not able to appreciate the various case laws relied upon by the ld AR with regard to section 194C(6) and 194C(7) in as much as in all those cases, the PAN was indeed submitted to the competent authority but belatedly. Hence in the interest of justice and fairplay, we deem it fit and appropriate to remand this issue to the file of the ld AO for verification of this aspect and decide the issue in accordance with law. Addition on account of undisclosed receipt based on difference in receipt as per Form 26AS and profit and loss account - Held that:- It is not borne out from the records before us as to whether the assessee had claimed the full TDS credit in the return and assessment as reflected in Form 26AS. It is well settled that TDS is related to income offered thereon i.e the TDS could be claimed in the year in which the corresponding income is offered to tax by the assessee. No finding in this regard is given by both AO and the ld CITA for better appreciation of the facts. In our considered opinion, this requires factual verification by the ld AO. In these facts and circumstances, we deem it fit and appropriate, in the interest of justice and fairplay, to remand this issue to the file of the ld AO for denovo adjudication in accordance with law. The assessee is also directed to furnish proper reconciliation with Form 26AS in respect of each of the party and also given liberty to furnish further evidences in support of its contentions. Accordingly, the ground no. 2 raised by the revenue is allowed for statistical purposes. Addition addition made towards share capital as unexplained cash credit - Held that:- We find that the three shareholders had duly confirmed the factum of making investments in cash as well as cheques in the assessee company. They had also filed their respective balance sheets and income tax returns to prove their credit worthiness. We find that no finding is given by the authorities below to explain the sources of three shareholders to make investments in cash with facts and figures by clearly proving that as on the date of making the investments in assessee company, whether the three shareholders had sufficient cash balances as per books. This has to be verified from their cash book or from their cash flow statement. AO is accordingly directed to make factual verification of the same in the manner known to law to ascertain the veracity of their creditworthiness. Addition made towards service tax u/s 43B - Held that:- DR was not able to provide any contrary case law before us nor was he able to controvert the claim of the assessee that no deduction per se was claimed by the assessee towards service tax so as to fall outside the ambit of section 43B of the Act. The ld AR argued that service tax portion is kept as a liability in the books and as and when the same is paid , the liability account gets knocked off. Hence it does not enter the profit and loss account at all. We find no infirmity in the order of the ld CITA granting relief to the assessee by placing reliance on various decisions. Accordingly, the Ground No. 4 raised by the revenue is dismissed. Disallowance of interest u/s 36(1)(iii) - Held that:- We find that the ld CITA had deleted the disallowance after recording a factual finding that the assessee was having sufficient own funds to advance interest free funds to related parties. This factual finding remain uncontroverted before us by the revenue. Hence we find no infirmity in the order of the ld CITA applying the decision of Hon’ble Bombay High Court supra to the facts of the instant case.
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2018 (7) TMI 942
Depreciation on CT scan, ECG & ECG Accessories and Patient Monitoring System - @ 15% OR 40% - AR contended before us that there is no distinction between MRI scan and CT scan except creating the superior quality of images, the depreciation on the disputed items as claimed by the assessee @ 40% is allowable - Held that:- Referring to relevant portion of New Appendix I governing the depreciation under Life Saving Medical Equipment at (iii) (xia) of para A it suggests that no deprecation @ 40%was provided to CT scan, ECG/ ECG Accessories and Patient Monitoring System. We find the facts and circumstances in the case of M/s Bharat Scans Pvt.Ltd. [2014 (2) TMI 1150 - ITAT CHENNAI] as rightly pointed by Ld.DR, in our opinion, is not applicable with the facts and circumstances of the present case. As discussed and opined above that CIT(A) is justified in confirming the addition made by the AO and it requires no interference from us - Decided against assessee.
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2018 (7) TMI 941
Fringe benefits escaping assessment - Fringe benefit tax [FBT] liability - assessee provided free / concessional tickets to its employees / their family member - re-assessment of Fringe Benefit [FB] u/s 115WE (3) read with Section 115WG - Held that:- Since the assessee has originally been assessed, its case is covered by Clause (c) of the explanation, since the information as received by Ld. AO, suggested possible escapement of fringe benefit. At this stage, only a prima facie opinion suggesting underassessment was required to be formed by Ld. AO, which has apparently been formed. It is settled law that deeming fiction has to be construed strictly. The Ld. AO, subsequent to completion of assessment, came across certain information which suggested possible under-assessment of fringe benefit in the hands of the assessee. This being the case, we are of the opinion that the Ld. AO was clinched with valid jurisdiction to reassess the fringe benefit of the assessee. This ground of assessee’s appeal stand dismissed. Coming to the merits of the case, we find that Ld. CIT(A) has granted partial relief to the assessee by relying upon the decision of this Tribunal rendered in Jet Airways (India) Ltd. Vs. DCIT [2013 (1) TMI 722 - ITAT MUMBAI] as directed to value the tickets at par with the provisions made by the assessee with respect to frequent flier programme which would be further reduced by the amount recovered by the assessee from its employees in this regard - we confirm the stand of Ld. CIT(A) in this regard particularly when the revenue is unable to place on record any contrary judgment of any judicial authority. Accordingly, this ground as raised by revenue in the appeal and as raised in cross-objections, stands dismissed. Time limit for completion of assessments and reassessments - time barred assessment - Held that:- since the notice was issued on 06/11/2012, the re-assessment u/s 115WG was to be completed within 9 months from the end of the financial year i.e. by 31/12/2013. As against this, the assessment has been completed on 20/02/2014, which is clearly time barred as per statutory provisions of Section 153 (1B). This being the case, the assessment could not be said to have been framed within the ambit of statutory framework and therefore, the same being time barred, could not be sustained in the eyes of law. Resultantly, we quash the same. Accordingly, the additional ground raised by assessee stands allowed.
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2018 (7) TMI 940
Long term capital gains on sale of immovable property - fair market value adopted by the A.O. as per the provisions of section 50C - Non reference to DVO - Held that:- In case of dispute, the assessee is free to approach the stamp valuation authority. In case the assessee did not dispute in any appeal or revision or no reference has been made before any High Court, and objects before the AO for adopting the SRO value for capital gains as per section 50C, the A.O. may refer the valuation of the capital asset to valuation officer and the value determined by the valuation authority shall be taken as full value for the purpose of capital gains. In the instant case, the assessee has not disputed the valuation made by the stamp valuation authorities for the purpose of stamp duties but objected for adoption of the same for capital gains. The assessee explained that SRO value was not disputed because of payment of stamp duty by the buyer. The assessee also did not request the AO for making reference to the Departmental valuation officer (DVO) for valuing the property. Assessee brought on record regarding the non exclusion of tenants share and complexities involved in sale of the property and for getting the lesser rate - AO should have referred to the Departmental Valuation cell for valuing the property as provided in section 50C(2). Since the AO has ignored the objections of the assessee and failed to refer the valuation of property to the DVO, we are of the opinion that the case should be remitted back to the file of the A.O. to make reference to the DVO to determine the fair market value of the property for the purpose of computation of capital gains - Appeals filed by the revenue are allowed for statistical purposes.
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2018 (7) TMI 939
Disallowance of interest free loan advance - Held that:- The same trade advances were given by the assessee in earlier years and the commercial expediency was examined by the learned CIT(A) and ITAT in earlier years and the order of the Assessing Officer passed in the earlier years were reversed by the learned CIT(A)/ITAT for the assessment years 2010-11 and 2011-12.[2018 (4) TMI 243 - ITAT DELHI] Disallowance u/s 14A r/w rule 8D - Held that:- The grievance of the Revenue in the present case is that the learned CIT(A), without considering the satisfaction recorded in the order of Assessing Officer, has wrongly come to the conclusion that the Assessing Officer has not given cogent reason or opinion about the correctness or otherwise of the assessee’s claim. Therefore, relying upon the decision of the Hon’ble Delhi High Court in the case of Maxopp Investment Ltd. Vs. CIT (2018 (3) TMI 805 - SUPREME COURT OF INDIA) it was concluded by the Ld. CIT(A) that the Assessing has not recorded the satisfaction as required in law. However, while going through the order of the Assessing Officer, as it was clearly brought on record by the able Departmental Representative, that the Assessing Officer has duly recorded the satisfaction as required in law. Therefore, in our opinion, the finding recorded by the learned CIT(A) is without any merit and perverse, therefore, the same is required to be reversed.
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2018 (7) TMI 938
Limitation period for passing the order under section 254/143(3) - period of limitation - Held that:- CIT(A) reproduced Section 153(2A) in his findings as reproduced above. According to the provisions of Section 153(2A), an assessment order, pursuant to the Order under section 254 of the Act has to be made before expiry of one year from the end of the financial year in which order under section 254 of the Act is received by the Department. In this case, the A.O. made addition of ₹ 9 lakhs only in the original reassessment order which is set aside by the Tribunal and the issue of ₹ 9 lakhs was restored to the file of A.O. vide order dated 08.06.2010. Therefore, limitation period for passing the order under section 254/143(3) expired on 31.03.2012 whereas, the impugned assessment order was passed on 28.03.2014, therefore, it is time barred. The assessment order passed by the A.O. is time barred and as such, the entire proceedings have been vitiated and void abinitio
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2018 (7) TMI 937
Subsidy received by the assessee from Government of West Bengal under Incentive Scheme 1999 taxability - revenue or capital receipt - MAT computation - Held that:- Subsidy receipt is a capital receipt is not taxable under normal provision of Act. Though it is a capital receipt is not liable for consideration under book profit under MAT proceedings u/s 115JB of the Act. Order of the CIT(A) is set aside. The additional ground Nos. 1 and 2 raised by the assessee are allowed. Allowance of expenses made on account deferred revenue expenditure - Held that:- As relying in the guidance note issued by the Institute of Chartered Accountant of India on treatment of expenditure during construction period where it was recommended that the indirect expenditure incurred during the construction period should be capitalized as part of indirect construction cost to the extent to which the expenditure is indirectly related to construction or if incidental thereto. Thus delete the addition made on account of deferred expenditure. Ground nos. 1(a) and (b) raised by the assessee are allowed. Directing the AO to compute the disallowance @ 1% for the purpose of section 14A - Held that:- we find that the CIT(A) by placing reliance on the decisions of ITAT Kolkata in the case of Civil Engineers Enterprises Pvt. Ltd [2010 (8) TMI 975 - ITAT KOLKATA] directed the AO to disallow 1% of dividend income at ₹ 18,14,470/-. Therefore we find no infirmity in the order of CIT(A) . Ground no.2 raised by the assessee is dismissed. Deletion of disallowance made on account of loss for re-statement of foreign exchange confirmed 0 issue is covered by the consolidated order in favour of the assessee in its own case [2016 (5) TMI 479 - ITAT KOLKATA] addition made on account of freight charges - Held that:- the reason given by the AO for the disallowance is not tenable as the AO has not pointed out any reasonable reasons for the same. There is no doubt that the assessee had made short recovery from the customers but the reasons for the same were duly explained by the assessee. Accordingly the Ld. CIT(A) has given the relief to the assessee and on this point of view Ld. DR has not brought anything on record contrary to the findings of the Ld CIT(A). see assessee in its own case [2016 (5) TMI 479 - ITAT KOLKATA]
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2018 (7) TMI 936
Rectification of mistakes apparent from the record - eligibility for exemption u/s 11 - Held that:- As pointed out by the assessee, there is a mistake apparent from the record in the order, para No. 7 in the order is modified as under: “7. We notice from the record produced by the assessee that assessee has deducted relevant tax on security charges. Even though, assessee has submitted the document before the AO, still AO disallowed the expenditure. This issue should go back to AO for verification and deletion of the above disallowance. Since, the findings of CIT(A) are confirmed by us, consequently, assessee is eligible for exemption u/s 11. Hence, this ground becomes academic in nature, accordingly, this ground raised by the assessee is allowed.”
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2018 (7) TMI 935
Disallowance of finance costs - proof of business expenses - Share in Joint Venture (JV) - as contended that any loan given to fund these SPVs is nothing but funding its own business operations and hence any interest incurred on such borrowed funds is totally allowable u/s. 36(1)(iii) - Held that:- What assessee has done is only investment in sister concern. What assessee can earn is by way of dividend from sister concerns or by way of interest on the deposits made in the banks, if any surplus funds are available or temporary funds are available, as can be seen from the ‘other income’ earned by assessee-company during the year. Thus, assessee cannot be considered as an assessee carrying on business of construction and development of airports, but only as investor, sponsor, promoter etc. Since assessee is not carrying on any business activity on its own, the question of allowing the deduction u/s. 36(1)(iii) of the Act does not arise as there is no business activity and the investment itself cannot be considered as ‘for the purpose of business’ as there is no business activity at all. Another argument raised by the Ld. Counsel was that the directors are the directors in the SPVs as well and so the business of SPV can be considered as business of assessee. This argument cannot be accepted for the reason that directors can be appointed in any company based on their qualification or association but not because of business connection. If the argument is to be accepted, then, independent directors who are not connected to the promoters but are in various companies, such situation cannot be considered as having business connection with each company, in which they are directors. The argument is rejected. Even though neither party raised the issue, since assessee’s main source of income is only in the nature of dividend, the provisions of Section 14A of the Act may also apply to the facts of the case. Since there is evidence of nexus of borrowing funds being invested in sister concern and assessee sources of income can only be earning dividend income, the entire interest income has to be considered for disallowance u/s. 14A under Rule 8D2(i)/(ii) for the impugned assessment year. Since the direct nexus is available for investment in share capital of sister concern or further investment in level-3 SPVs, the direct nexus of the borrowed funds to that of investment certainly attract the provisions of Section 14A and on that reason also the deduction claimed by assessee cannot be allowed. For these reasons, we agree with the orders of AO and CIT(A) on this issue. Ground is dismissed. Allowance of operating cost - Held that:- Since assessee is not considered to be in the business of construction of airports per se on its own and is only investing as a promoter, it cannot be considered as business activity of assessee. However, necessary expenditure for running day to day activity of the company has to be allowed as a deduction accordingly either u/s. 37(1) or under the head ‘other sources’. Such expenditure cannot be outrightly disallowed and as the claim is only for operating expenditure of assessee-company, AO is directed to examine and allow the expenditure. Accordingly, this ground is considered allowed for statistical purposes. Set-off of losses is eligible for set-off against the interest income - Held that:- The losses in earlier year if carried forward as business loss, the same can only be set-off to the business income. Since there is no business income during the year, the loss cannot be set-off to the other sources of income. However, current year’s operational expenditure is to be allowed as set-off as per the provisions of the Act. AO is directed to examine this aspect and whatever amount is allowable as operational cost of the company, allowed in Ground No.2 can be set-off to the income from other sources i.e., interest income earned during the year. AO is directed to examine the provisions of law and facts of the case and directed to do accordingly. Ground is considered allowed for statistical purposes.
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2018 (7) TMI 934
Rectification of mistake - Held that:- There is no mistake apparent on record requiring rectification. The facts as to whether the balances of the current year are substantially the same as that of the previous year except for minor negligent transactions, during that period is to be verified. We are sure that Assessing Officer would follow the decision of the Tribunal taken in the earlier assessment year after the remand from the Hon'ble jurisdictional high court of the facts after verification are found similar. The plea of the Learned counsel for the assessee for a direction in this regard, in our view cannot be issued in an Miscellaneous Application u/s. 254(2) of the Act. Hence, this ground of MA is dismissed. Prior period expense - Held that:- When the Assessing Officer has accepted the claim of the assessee to the extent of ₹ 1,55,44,332/- in the remand report, it is wrong on the part to the assessee to assume that AO would do otherwise, contradicting the himself in the remand report. In any event there is no mistake apparent on record. Hence, this ground is dismissed. MAs of the assessee are hereby dismissed
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2018 (7) TMI 933
TDS u/s 194C - Disallowing/adding assessee’s hire charges - non deduction of tds - Held that:- We find no substance in Revenue’s instant grievance. It seeks to apply section 194C to treat the assessee’s hire charges in question to be contractual payments made for transportation of goods. We make it clear that there is no dispute about assessee being a firm engaged in transportation business and that it has indeed made the impugned hire charges payments to various lorry operators in lieu of engaging their respective vehicles on as and when required basis. Chapter XVII section 194C of the Act is applicable in case of payments made to contractors subject to various conditions envisaged therein. There is no material on record in the instant case file which could indicate that the assessee ever delegated its transport liability to the payees concerned. What it has done is to merely hire the transport vehicles without any corresponding liability being passed on to the payees in question by any written or oral agreement The assessee has also placed on record that necessary PAN details of its payees as per the scheme of the Act vide amendment through Finance Act, 2009 w.e.f. 01.10.2009 along with the corresponding quarterly form 27A; although belatedly. This is not the Revenue’s case that such a belated filing of details entails any penal disallowance. We therefore affirm the CIT(A)’s findings under challenge qua this issue of disallowance of hire charges Disallowance assessee’s repair and maintenance charges - tds liability - Held that:- An amount of ₹ 32,71,562/- represents assessee’s spare parts on outright sale purchase basis which does not require any TDS deduction since not attracting any of the specified clauses in Chapter XVII of the Act. Learned Departmental Representative fails to dispute that all the remaining payments are very well below the threshold limit of ₹ 20,000 in each case wherein the relevant TDS provision does not apply. The assessee’s ledger enclosed as marked –A7 to this effect has nowhere been rebutted during the course of hearing before us. We therefore see no reason to disturb the CIT(A)’s reasoning Adding the salary paid to drivers and khalas - Held that:- Assessing Officer has made both these two components of addition of salaries to drivers and khalas on mere estimation. We afforded ample opportunity to the Revenue to indicate about any actual sums being paid as per assessee’s books of accounts. It has come on record that the assessee had been having 11 permanent drivers and 5 khalas. It explained to have engaged them on make shift basis as clubbed in trip expenses. We thus decline the Revenue’s instant third substantive ground as well. Notional interest disallowance - Held that:- Referring to assessee’s non interest borrowing funds in its capital balance of partners reads a figure of rs.,1,24,21,710/- as against interest free advance made to M/s. Telecom Steels (P) Ltd. And Dayal Auto Finance involving sums of ₹ 36,56,600/-, ₹ 94,00,000/- ; respectively - the assessee had made advances for purchasing trucks in case of the latter entity. There is no material in the case file produced at the Revenue’s behest to dispel the CIT(A)’s clinching findings to this effect. The assessee’s ledger copies further indicated that former advance sum related to purchase of land and other assets. We therefore conclude that the CIT(A) has rightly deleted the impugned disallowance/addition - Revenue’s appeal is dismissed.
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2018 (7) TMI 932
Disallowance of deduction u/s.80HHC - rectification u/s.154 - Commissioner of Income Tax (Appeals) and later this Tribunal and the appellate authorities held the rectification u/s.154 to be void citing a reason that claim u/s.80HHC involved legal issues - Held that:- It is not disputed that disallowance of A2,10,754/- claimed by the assessee u/s.80HHC of the Act, was first attempted by the Revenue through a rectification order dated 24.04.2007. It is also not disputed that the rectification done by the Revenue was set aside by the appellate authorities, citing the reason that it involved legal issues. Thus, admittedly, there were parallel proceedings both u/s.154 as well as 147 of the Act. It might be true that order passed u/s.154 of the Act was overturned by the appellate authorities. There were two different proceedings u/s.147 and 154 of the Act on the same issue and this has not been disputed by the ld. Departmental Representative. Commissioner of Income Tax (Appeals) while holding in favour of the assessee had relied on the judgment of Hon’ble Jurisdictional High Court in the case of CIT vs. E.I.D Parry Limited, (1995 (3) TMI 65 - MADRAS HIGH COURT). Commissioner of Income Tax (Appeals) was justified in deleting the disallowance - Decided against revenue
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2018 (7) TMI 931
Deduction on account of portfolio management (PMS) fees allocated towards the Short term capital gains on sale of shares - Held that:- Portfolio Management Fees and Performance Linked Fees were paid by the assessee to his portfolio manager i.e. M/s Enam Assets Management Company (P) Ltd. towards service charges for making investments of his funds and managing the portfolio of securities, therefore, the same not being an expenditure incurred wholly and exclusively in connection with the transfer of the shares out of which STCG had arisen to the assessee, had thus rightly been held by the A.O as not allowable as a deduction under Sec. 48 - Uphold the disallowance of made by the A.O in respect of the Portfolio Management Fees and Performance Linked Fees which was claimed by the assessee as a deduction under Sec. 48 while computing the STCG on transfer of shares. - Decided in favour of revenue
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2018 (7) TMI 930
Computation of capital gain in terms of section 50(1) - assessment year - Held that:- AO himself has held that the capital gain should have been taxed in A.Y. 2006-07, since, the transfer of the capital asset in terms of Section 2(47)(v) has taken place in that assessment year - thus the gain derived from transfer of capital asset was to be assessed in A.Y. 2006-07 and not in the impugned assessment year. Also considering the fact that this without prejudice argument was made by the assessee under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963, under which the assessee is entitled to support the order of the CIT(A) on any ground decided against him,the relief is to be restricted to the extent given by the learned CIT(A). Accordingly, we uphold the order of the CIT(A) on this issue. Deduction of claim towards payment made by the builder to the employees for vacating the staff quarters - Held that:- the assessee has failed in its attempt to vacate the employees. Therefore, the buyer stepped in and after paying compensation of ₹ 1.04 crores to the employees he got the staff quarters vacated. Thus, the said amount was adjusted from the agreed sale consideration to be paid to the assessee. The aforesaid facts make it clear that the amount of ₹ 1.04 crores was never received by the assessee from the buyer as the buyer adjusted it from the sale consideration. In any case of the matter, even if it is treated as part of sale consideration the amount of ₹ 1.04 crores have to be treated as expenditure incurred by the assessee for transferring the property, hence allowable under Section 48 of the Act. Thus, looked at from any angle the amount of ₹ 1.04 crores has to be allowed as deduction. Sale of property - bifurcation in to land and building - Long term / Short term capital gain - Held that:- As could be seen from the facts on record, assessee itself has bifurcated the sale of property to land and building portions and offered long term capital gain and short term capital gain on the sale consideration received. However, when the Bench put a query to the learned counsel for the assessee regarding the exact extent of land and building sold and how the valuation of the land portion and building portion was made, the learned counsel for the assessee fairly submitted that the relevant documents have not been filed. Even, the copy of the sale agreement has not been filed before us. Thus, in the absence of these primary and basic facts and documents such as sale agreement as well as the basis for valuation of property, it is difficult for us to render any conclusive finding on the claim made by the assessee - restore the disputed issue to the AO for de novo adjudication
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Customs
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2018 (7) TMI 929
Amendment in IGM - In the IGM, the fourth respondent's name was mentioned as the importer in view of the fact that it was the notified party - The goods belonged to another party whose details are set out in paragraph 8 of the petition and at their request, the name of respondent No.4 was notified - Held that:- Since there was no action taken but the petitioner was informed to obtain a No Objection Certificate from the fourth respondent, which in the circumstances aforestated, the petitioner says is untraceable, that this writ petition with the above prayer - All amendment applications ought to be disposed of expeditiously and without inconveniencing parties like the petitioner. More so, when they are ready and willing to indemnify the respondents against any claims being lodged or raised by the fourth respondent in this petition. Petition allowed.
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2018 (7) TMI 928
Restriction on import of peas (yellow peas) - advance payments were made against import - Validity of Trade's Notification No.4 /215-220 dated 25th April, 2018 - Whether the Government of India, Ministry of Commerce and Industry, Department of Commerce, Directorate General of Foreign Trade's N/N. 4/215-220 dated 25th April, 2018, and particularly the Policy condition No.4 therein has been creating, according to some Regional authorities of the Directorate General of Foreign Trade, a situation where clarification was required to be obtained from the Government of India and particularly the Ministry as aforesaid? Held that:- It is no doubt that the principle, which is settled as far as administrative law is concerned, in unequivocal terms says that the statutory notifications, if required to be altered or amended in future, then, the same route has to be adopted and no administrative orders/executive instructions and circulars can then be issued so as to interfere with, much less amend the statutory prescriptions. A Notification in this case, according to the learned senior counsel appearing for the parties, has been issued in exercise of the statutory powers conferred by section 3 of the FTDR Act. Therefore, an amendment to the Notification has to be in like manner. Section 3 of the FTDR Act falls in Chapter II. Sub-section (1) says that the Central Government may, by order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. By subsection (2) of section 3, there is a power conferred in the Central Government to publish an order making prohibition or prohibiting or otherwise regulating the import or export of goods or services or technology. This can be subject to exceptions - Section 4 continues the existing orders made under the Imports and Exports (Control) Act, 1947, which is an Act repealed by section 20 of the FTDR Act. Section 5 provides for formulating and pronouncing FTP. If it is formulated and announced by a Notification in the Official Gazette, it can also be amended by the Central Government. It is the FTP vide its paras, which is stipulating certain measures and when there is any restriction placed on the imports, which are otherwise stated to be free. “Unless otherwise stipulated” are the words and expressions appearing in clause (b) of para 1.05, which would enable us to understand that it is not because there is a blanket provision made in para 1.05 that the restriction or regulation notwithstanding the export or import will ordinarily be permitted. If there is a stipulation otherwise, then, these wide or general words will not be of any assistance. As far as the subject Notification is concerned, it is apparent from a bare reading thereof that it is issued in exercise of the powers conferred by section 3. There is a clear stipulation therein and in that regard, the language of the same is important. The FTP, as amended from time to time, contains stipulations with regard to import. Now the import policy of certain items of Chapter 7 of the ITC (HS) 2017 stands amended. The revised import policy is restricted, which was free. The transitional arrangement, which has been clarified by this trade notice does not contravene the substantive provisions of the notification or section 3 of the FTDR Act in the Central Government. Petition fails and is therefore dismissed.
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2018 (7) TMI 927
Provisional release of seized goods - whether the petitioner is ready and willing to execute a bond as demanded by the authorities and in addition, furnish a bank guarantee so as to secure at least part of the duty demand, which eventually may be raised? - Held that:- In the facts and circumstances of the present case, we think it just, fair and proper and when the duty demand is substantially secured by a bank guarantee as also bond in favor of the Government of India that the following order will meet ends of justice:- On the petitioner executing a bond equal to 100% of the value of the goods and furnishing a bank guarantee in the sum of ₹ 1.40 crores both within a period of two weeks as stated and undertaken, the competent authority shall pass an order on the pending application seeking a detention certificate and release the goods in favour of the petitioner. The bank guarantee shall be kept alive till final orders of the Competent Authority. Petition disposed off.
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2018 (7) TMI 926
Whether the transferee of the DEPB licence which was fraudulently obtained by the transferor (exporter of the goods) is liable to pay the customs duty? - whether the demand is time barred? Held that:- Hon’ble Supreme Court judgment in the case of Ajay Kumar & Co. [2009 (5) TMI 20 - SUPREME COURT] has held that the malafide and suppression of fact, misdeclaration, fraud etc. cannot be alleged against the transferee, against the DEPB licence, therefore, demand for the extended period cannot be raised against the transferee of the licensee - In view of the above findings, being same set of facts in the present cases, the demand of extended period is not sustainable. Since we are deciding these appeals only on the ground of limitation, we do not incline to address the merit of the case. Appeal dismissed - decided against Revenue.
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2018 (7) TMI 925
Levy of additional duty (CVD) duty - Whether the payment of countervailing duty made by the appellant at the time of import of the goods, on the MRP already affixed on the goods in question is correct or they are under further legal obligation to pay the differential CVD on the allegations and findings of enhancing the MRP? - difference of opinion. Held that:- As there are difference of opinion, the matter referred to Hon'ble President to resolve the issue, by reference to a third Member.
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2018 (7) TMI 915
Imposition of Customs duty with penalty - Confiscation - redemption fine - penalty - Held that:- Inspite of specific question put to Mr. Ranka counsel for the respondent regarding imposition of duty, he could not point out whether duty is liable to be imposed on the assessee, therefore, in our considered opinion, impugned order of penalty, redemption of fine and confiscation seems to be prima faice without jurisdiction - In that view of the matter, without expressing any opinion on the question of alternative remedy, to meet with the ends of justice, this court is bound to exercise its power under Article 226 of the Constitution of India to prevent injustice which has been done to the assessee. This is a fit case, where the High Court should exercise power otherwise this will amount to putting premium on the petitioner who is not required to pay even basic duty and penalty. The writ petitions are admitted.
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Insolvency & Bankruptcy
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2018 (7) TMI 968
Corporate insolvency process - Repayment of Restructured Liability - Held that:- Admittedly, the ‘Corporate Debtor’ failed to pay instalments in terms of the schedule I annexed to the ‘agreement’. What is the reason for default of payment cannot be a ground to reject the application under Section 7, as the Adjudicating Authority is only supposed to see whether the application is complete or not and whether there is any ‘debt’ or ‘default’. We find no merit in this appeal.
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Service Tax
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2018 (7) TMI 922
Reverse Charge Mechanism - Real Estate Agent Services - period involved is 2002, 2003 and 2004 - sub-clause iv in Clause D and sub-rule (1) of Rule 2 of the Service Tax Rules, 1994 - Held that:- The matter is no longer res integra as issue has already been finalised by Hon’ble Bombay High Court in their judgement in the case of Indian National Shipowners Association Vs. Union of India [2008 (12) TMI 41 - BOMBAY HIGH COURT], where it was held that Before insertion of section 66A with effect from 18-4-2006, there was no authority to levy service tax on Import of service. Explanation below section 65(105) did not give any authority to levy service tax on import of services. The services received by the appellant from the service provider who are not based in India are not liable to service tax prior to 18/04/2006 and as since the entire period of demand is prior to the period of 18.4.2006, the order-in-appeal is devoid of any merit and same is set aside. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 921
Reverse Charge Mechanism - GTA Services - Benefit of N/N. 32/2004-ST dated 03.12.2004 and N/N. 12/2003-ST dated 20.06.2003 - CBEC vide Circular No.B1/6/2005-TRU dt. 27.07.2005 - Held that:- CBEC vide Circular No.B1/6/2005-TRU dt. 27.07.2005 clarified that the declaration as required under Notification No. 32/2004-ST dated 03.12.2004 can be made on the letterhead of the transport company - Hon’ble Gujarat High Court at Ahmedabad in the case of Commr. Of C.Ex, Cus & Service Tax vs. Neral Paper Mills Pvt. Ltd. [2010 (9) TMI 297 - GUJARAT HIGH COURT] have dismissed the Revenue’s appeal and held that order denying the benefit of N/N. 32/2004-S.T., dated 3-12-2004 is not correct in law - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 920
Business Auxiliary Services or manufacture? - activity of processing of raw-milk and packaging the same - Held that:- An identical issue has already been decided by the Tribunal in favour of the appellant in the case of M/S SHRI VRINDAVAN DAIRIES VERSUS CCE & ST, JAIPUR – I [2018 (6) TMI 804 - CESTAT NEW DELHI], where it has been held by the Tribunal that since the activity carried out by the appellant amounts to manufacture in terms of the specific deeming provisions inserted in Note 6 to Chapter IV of the Central Excise Tariff Act - there is no justification for levy of Service Tax on the same consideration. It is seen that the SCN as well as the impugned order has discussed, the leviability of Service tax only. With reference to the provisions, which were in existence prior to 01.07.2012. The adjudicating authority does not appear to have paid attention to the fact that the levy of Service Tax has been shifted to a negative list basis - Even under the new provisions w.e.f. 01.07.2012 we find that the activity undertaken by the appellant is specified under the negative list in Section 66D (f). Consequently, there is no justification for demand of Service Tax even for the period subsequent to 01.07.2012, even though, the relevant Notification No.34/2012-ST dated 20.06.2012 has since been rescinded. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 919
Reverse charge mechanism - expenses incurred for maintenance of the offices abroad - Department entertained a view that the expenses incurred by the appellant for the maintenance of the offices abroad are liable to Service Tax on reverse charge basis - Head Office of the appellant in India as well as their Branch offices abroad. Held that:- Such payments have been made by the appellant to their own branch offices towards reimbursing the salaries of the employees working there, as well as the expenses incurred by the representative office - After carefully considering the provisions of law prior to and w.e.f. 01.07.2012, we note that there Is in essence no substantial change in the law. We are of the view that Section 65 B (44) read with the relevant Explanations are peremateria to the Section 66A (2) read with Explanation - Consequently, the finding of the Tribunal needs no modification even for the period after 01.07.2012. Hence, there is no justification to demand Service Tax on the amounts paid by the appellant to their branch office towards reimbursement of their expenses. The Commissioner has failed to discuss the issue in the light of the provisions, which have been included in the statute w.e.f. 01.07.2012. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 918
Principles of Natural Justice - opportunity of being heard not provided - Works Contract Service - non-payment of service tax - registration also not obtained - Held that:- While passing the order under challenge, the Appellant has not been heard. This amounts to the violation of the basic principle of natural justice, "audi alteram partem". For this reason itself, the remand of the matter for being readjudicated is opined to be the appropriate remedy. Also, for the reason that the Appellant has acknowledged to provide the Department all the relevant documents to help the Department to recalculate the demand, the matter is being remanded. Appeal allowed by way of remand.
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2018 (7) TMI 917
CENVAT Credit - various input services - denial on the ground that the sites were not included in the list of the centralized registration - Held that:- Merely for the reason that respective sites were not included in the centralized registration certificate issued to the appellant, it cannot be a valid ground to deny the credit, as the out put services rendered in these sites must have suffered appropriate service tax - also there is no dispute of the fact that the input services were not utilized in providing the out put services - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 916
Maintainability of appeal - case of Revenue is that the appellant had not filed any appeal against the Adjudication Order - Held that:- The appellant had agreed with the Order of the Adjudicating authority and no appeal was filed before the Commissioner (Appeals). Therefore, the appeal filed by the appellant before this Tribunal is not maintainable - appeal dismissed as not maintainable.
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Central Excise
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2018 (7) TMI 914
CENVAT Credit - various input services - Group Health Insurance - Convention Service - Construction Service - Air-conditioner maintenance service - rent-a-cab service - Held that:- The Tribunal as well as High Courts have held in a number of decisions that services like Group Health Insurance, Convention Service, Construction Service, Air-conditioner maintenance service and rent-a-cab service are eligible for credit prior to 1.4.2011 - the credit availed on this input service for the period prior to 1.4.2011 are eligible for credit as per the definition of input service as it stood prior to 1.4.2011 - credit allowed. Group health insurance - Held that:- Since the appellant has more than 600 employees, it is mandatory for them to take insurance coverage for their employees. The exclusion clause in the definition of input service excludes such kind of insurance which is taken for an employee during the leave travel allowance and it does not blanketly exclude all insurance service - Though the Tribunal in the case of Hindustan Petroleum Corporation [2018 (3) TMI 239 - CESTAT MUMBAI] has taken a view that medical insurance service is not eligible for credit, the said decision is not applicable to the facts of the present case for the reason that in the said case the insurance was taken for security agency i.e. CISF, who is not a direct employee of the assessee - credit allowed. Rent-a-cab service - Held that:- The ld. counsel has submitted that the said services are not used for activities relating to manufacture - demand upheld alongwith interest and penalties. Commercial construction service for the purposes of modernization and renovation of the factory and office premises - Held that:- Appellant says that the appellant would be able to furnish documents to establish the same - matter remanded to verify the issue. Commercial construction services which have been availed prior to 1.4.2011 - Held that:- The credit is allowed on this service. coating service (job work) - Held that:- Notification No.25/2012 dated 20.6.2012 came into force with effect from1.7.2012 which exempted service tax on such processing work done by the job worker. The authorities below have relied upon this notification to disallow the input service tax credit - however, these services have been availed prior to 1.7.2012 and therefore the disallowance of credit by the authorities below relying upon the notification is incorrect and unjustified - credit allowed. Air-conditioner maintenance service - Held that:- The Tribunal in the case of Sarita Handa Exports (P) Ltd. [2016 (7) TMI 554 - CESTAT CHANDIGARH] has held that credit is eligible for services availed for maintenance of air-conditioner. Further, the inclusive part of the definition of input service mentions that the services availed for repair and maintenance is eligible for credit - credit allowed. Appeal allowed in part and part matter on remand.
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2018 (7) TMI 913
Valuation - Syrup - inclusion of value of the cups and carbon dioxide (Co2) and also the maintenance charges of the vending machines in transaction value - It is the case of the Revenue that the syrup in canister did not have any self marketability and that the cups, carbon dioxide gas and vending machines were essential and mandatory in connection with sale of the syrup and were part and parcel of such sale. Whether the value of Co2 gas, cups and Annual Maintenance Charge (AMC) of the dispensing machines are includible in the assessable value of syrup manufactured and cleared by the appellant upon payment of Central Excise duty as per the provisions of the Act? Held that:- The appellant is supplying beverages to various retail outlets for the manufacture of aerated water at the vending machines - the vending machine was obtained by the retail vendor first and thereafter the vendor purchased the syrup, carbon dioxide and cups, as the case may be. The Adjudicating Authority failed to appreciate that it was the choice of the vendor whether or not to obtain the vending machine. It was only if a vendor obtained the vending machine that he thereafter required the syrup, carbon dioxide and cups, as the case may be. The syrup, carbon dioxide and cups were distinct and different commodities and the vendor purchased the same according to his requirements. Some of the vendors did not purchase the cups from the appellant at all. Sometimes a vendor purchased all the three items namely syrup, carbon dioxide and cups, sometimes only the syrup, sometimes only carbon dioxide and sometimes only the cups. Cups and carbon dioxide - Held that:- The cups and carbon dioxide were not manufactured by the appellant. The appellant purchased the cups and carbon dioxide from manufacturers and/or from the market and merely resold the same to the retail vendors. Because the cups and carbon dioxide were the appellant’s trading items, it did not take any cenvat credit upon purchase thereof. The appellant had separate prices for the cups and carbon dioxide which were sold to only those vendors who wanted the same. The sale of the cups and carbon dioxide for separate price had nothing to do with the sale of the syrup or the sale price of the syrup which was the same for all the vendors irrespective of whether they purchased any cups or carbon dioxide from the appellant. The separate price charged for the trading goods, namely, cups and carbon dioxide cannot be included in the value of the syrup. Vending machines - Held that:- The vending machines installed at the places of the buyers have nothing to do with and were not at all related to manufacturer of syrup. There can be absolutely no scope to include any maintenance charges relating to vending machines in the assessable value of syrup. The vending machines were not installed at appellant’s factory nor these were ever used for manufacturer of syrup - also, the vending machines were not owned by the appellant - the value not includible in assessable value. There is no authority for inclusion of the cost of cups, Co2 gas and AMC charges of the vending/dispensing machine in the assessable value of the syrup. The appellant is not mixing the Co2 gas with beverage and cleared the aerated water produced only at the vending machine. According to the Revenue, beverage syrup is not marketable. Therefore, if it is not marketable, it is also not excisable. In that case there is no question of adding Co2 gas and cost of AMC charges in the assessable value of syrup - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 912
Classification of goods - Laltel and Janma Ghunti - whether the goods classifiable under Chapter Sub-heading 3003.39 of Central Excise Tariff Act, 1985 which pertains to the Ayurvedic Medicines or under Central Excise Tariff Chapter Subheading 3003.39 but under Chapter 33.01 as aqueous distillate of essential oil? - Held that:- The Ld. Commissioner in hurry to adjudicate the order has not followed the instructions of this Tribunal in its letter and spirit. The adjudicating authority has grossly erred in holding that this Tribunal in DABUR (INDIA) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JSR [2002 (6) TMI 70 - CEGAT, KOLKATA] had held that the Janam Ghunti is classifiable under Chapter Sub-heading 3301 as detailed in preceding Paras 5 & 6 - The ld. Commissioner has also not considered the submissions made by appellant during the course of hearing wherein the appellant had offered samples of the same products manufactured by their other factory which is still manufacturing the same product with same composition for undertaking necessary chemical test for deciding the composition of the products. It is also seen that the Ld. Commissioner has also failed to verify the practice of classification of the same products followed in the other Commissionerate. Matter remanded to the original adjudicating authority for denovo adjudication with the directions that the instructions given by this Tribunal should be followed in its letter and spirit - appeal allowed by way of remand.
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2018 (7) TMI 911
CENVAT/MODVAT Credit - inputs lying in stock - transitional provisions - denial of credit also on the ground of endorsed duty paying documents - Held that:- The denial of credit, merely for the reason of the duty paying documents being endorsed, would defeat the purpose of the statute in extending the intended Modvat Credit relief, and, therefore, denial of credit should not be on that ground alone, but only on finding, upon verification that the consignment in question had not discharged the duty claimed as Modvat Credit - This issue has also been clarified by Board vide Circular No.441/7/99-Cx dated 23.02.1999. Since the Tribunal vide its earlier order had allowed transitional benefit in respect of goods lying in stock as on 01.03.1994, and in view of the settled legal position, the adjudicating authority cannot readjudicate the issues which had already attained finality. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 910
CENVAT Credit - Input service - GTA Service - It is the case of the Revenue that the assessee merely arranges for transportation of the goods on behalf of the consignee and was authorized to release payment of transportation on behalf of the customers - Held that:- The transaction of transportation of goods from factory gate to customer’s premises involves transporters as “service provider” and the respondent assessee as service receiver, and transporters have no relation with the customers. The issue is no more res-integra in view of the decision of the Hon’ble Supreme Court of India in the case of the Commissioner of Central Excise, Belgaum Versus Vasavadatta Cements Ltd. [2018 (3) TMI 993 - SUPREME COURT], where it was held that the expression used in the aforesaid Rule is “from the place of removal”. It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to be allowed. Credit allowed - appeal dismissed - decided against Revenue.
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2018 (7) TMI 909
Valuation - inclusion of VAT subsidy amount in the form of Vat-37 B in arriving at assessable value - Held that:- The issue is covered by the decision in the case of GREENLAM INDUSTRIES LTD [2018 (4) TMI 1552 - CESTAT NEW DELHI], where Identical issue decided in the case of SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR [2018 (1) TMI 915 - CESTAT NEW DELHI], where it was held that There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 908
Refund of accumulated CENVAT Credit - closure of production due to fire accident - Rule 5 of the Cenvat Credit Rules, 2004 - section 11B of Central Excise Act, 1944 - Held that:- The combined reading of both these provisions makes it clear that the refund of Cenvat Credits on inputs is admissible where such inputs have been used in the final product for export - But the fact of the present case is that the Appellant unit had stopped the manufacturing activity due to a fire accident in their premises and the refund has also been claimed solely on the said basis of the balance lying unutilized in their Cenvat Credit account. Thus, admittedly and apparently, appellant's case is not covered by the above said provisions. In the present case, admittedly, there is no manufacture subject to the closure of the company. Hence, the refund in furtherance of Rule 5 is not available. Since there is no provision under Cenvat Credit Rules, 2004 to permit refund of accumulated Cenvat Credit, where the manufacture activity has been stopped the adjudicating authorities below, have rightly rejected the claim - appeal dismissed - decided against appellant.
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2018 (7) TMI 907
Rectification of Mistake - appellant states that only reason for non-appearance before this Tribunal on 26th March; 2018 was that they did not receive the notice of hearing. There is no deliberate latches on their part in pursuing their appeal. Accordingly, learned Counsel prayed for modification of the final order/said order dated 28th November 2014. Held that:- The appellant have already made the pre-deposit of ₹ 7.50 lakhs on 3rd May, 2016. Further Section 35F stood amended w.e.f. 06/08/2014, provided for pre-deposit of 7.5% of the amount in dispute. We find that the appellant have deposited much more amount than the prescribed 7.5%, under the modified Section 35F. Accordingly, we allow this miscellaneous application and modify the earlier final order of this Tribunal dated 28th November 2014, accepting the pre-deposit made by the applicant on 3rd May, 2016. The learned Commissioner (Appeals) are directed to hear the appellant on merits and dispose of the appeal accordingly.
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CST, VAT & Sales Tax
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2018 (7) TMI 906
Refund of excess amount paid - the respondents could no longer process the return and assess the amounts, in view of the limitation under Section 34 - DVAT Act - Held that:- The petitioner had previously approached this court, for a direction that having regard to the circumstances, its refund claims for the period upto March, 2011 ought to be granted. This court, while disposing of the petition, gave a time bound direction. Instead of adhering to it, the respondent/ DVAT department of the Govt. of NCT proceeded to issue the order dated 22.08.2016, denying the claims on the ground that inadequate or unsatisfactory material had been produced by the petitioner. The petitioner’s grievance is two-fold. First of all, since the period of limitation for making an assessment on merits had expired, the default assessment became final. In the present case, the original assessment was set aside by the OHA. In the present case, the assessment for the period 2009 to March, 2011 became final, because the remand order (dated 17.09.2012) was never followed through with a fresh assessment order within the time period. Therefore, even if a fresh four-year period were to have been reckoned, that too ended. The revenue’s attempt to either verify the refund claim or to reopen the assessment under Section 34 is therefore, clearly beyond the authority of law - The revenue’s argument that refund is impermissible because the period for revising returns is utterly frivolous and baseless. If such an argument were to be countenanced, in every case, the assessee would have to revise its returns wherever it anticipates a refund, or a remand by the OHA. Clearly, it is the duty of the revenue to give consequential effect to the final effect of the OHA’s orders, that might set aside assessments. If no order is made within the time limit prescribed, clearly the revenue cannot hold on to the monies which do not bear the character of a valid levy; they have to be refunded. Petition allowed.
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2018 (7) TMI 905
Liability to pay certain sums on the petitioners in their capacity as Directors - proceedings by virtue of sub-section (6) of Section 44 of the Maharashtra Value Added Tax Act, 2002 on Directors - proper opportunity not given to Directors to show cause. Held that:- In the event the petitioners show cause, then an opportunity of personal hearing will be afforded to the petitioners and a reasoned order will follow thereafter. At such an opportunity of personal hearing, the petitioners can prove that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on their part, in addition to urging that given the scheme of the Companies Act, 2013 and sub-section (6) being subject thereto, there is a distinct personality in law. The existence of a Director and the company is independent of each other. Unlike a partnership firm, the company does not cease to exist merely because persons like the petitioners are not associated with it. Thus, all contentions can be raised at such an opportunity of personal hearing. We are relieved of the obligation to express any opinion on the rival contentions. Keeping the jurisdictional as also other points on merits open for being urged at an appropriate stage in the proceedings which may be initiated pursuant to a show cause notice, we dispose of the writ petition.
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Indian Laws
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2018 (7) TMI 924
There is no ground to interfere with the order framing charge - the trial court is directed to proceed with the matter pending before it.
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2018 (7) TMI 923
Punishment of removal of the name of the Appellant - imposition of monetary penalty - Appellant was held guilty under Clauses (7) and (8) of Part-I of the Second Schedule to the Act - section 21B(3) of the Chartered Accountants Act, 1949 - casual approach of the Appellant, neither producing the complete working papers nor producing Shri E. Mathan as his witness. Held that:- The working papers are very general and sketchy and do not contain the required information as mandated by the Auditing Standards i.e., AAS–3. In many cases even the year for which audit is done, name of person in-charge who carried out the examination and the details of his observations are not mentioned. Further, how the observations were satisfied is also not mentioned. When we asked about the Audit programme, even no proper audit programme was found in the working papers. We drew the attention of the Appellant towards the complaint that the financial statements certified by him were found to be fraudulent later on and huge losses were suffered by financial institutions/NBFC, therefore, there is more need on his part to establish that he carried out his duties diligently as per the Auditing Standards in vogue at that time. However, no convincing reply was given by the Appellant thereto. Based on the facts involved in both these Appeals in addition to pursuing all records and evidence besides hearing of the arguments of the parties, we are of the considered view that the Appellant undoubtedly has failed to prove that he had obtained all the information which was necessary for expressing the opinion and had exercised due diligence in the performance of his professional duties. Accordingly, we find no merit in both these Appeals and thus, both the Appeals are hereby dismissed. We find no reason to interfere with the punishment awarded by the Disciplinary Committee of the Institute of Chartered Accountants of India to the Appellant. Appeal dismissed.
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