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TMI Tax Updates - e-Newsletter
July 2, 2015
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
Indian Laws
Articles
News
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Delhi Budget Graph - 2015-16
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Software utility released for electronic filing of Income Tax Returns for A.Y. 2015-16 - ITR 1-Sahaj, 2 and 2A can be used by Individuals or HUF whose income does not include Income from Business.
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Delhi Budget 2015-16 – Highlights
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RBI Reference Rate for US $
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Change in Tariff Value of Crude Palm Oil, RBD Palm Oil, Others – Palm Oil, Crude Palmolein, RBD Palmolein, Others – Palmolein, Crude Soyabean Oil, Brass Scrap (All Grades), Poppy Seeds, Areca Nuts, Gold and Silver Notified
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Addition made under Section 41(1) - creditors outstanding for more than three years in the books of respondent-assessee - The settled position in law is that showing the amount due to the creditors in the balance-sheet amounts to acknowledgment of liability - No additions - HC
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Extension of stay of demand beyond the period of 365 days - on expiry of every 180 days, the appellant / assessee is required to make an application to extend stay granted earlier - However, at the same time, it may not be construed that widest powers are given to the Appellate Tribunal to extend the stay indefinitely - HC
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Unapproved sundry creditors - credit purchases are nothing but expenditure and if sundry credits are not proved by the assessee addition can be made by the assessing officer by resorting to section 69C - HC
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Waiver of the interest charged under Sections 234B and 234C - Since the matter is pending before this Court from 8.4.2008, the petitioner shall be absolved from the liability to pay interest for the period during which the writ petition was pending before this Court, and it is ordered accordingly. - HC
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Penalty under section 271(1)(c) - unaccounted donations - there was no explanation at the end of assessee for not showing these donations as its income in the original return(s) or in the return(s) filed in response to notice under section 153C. - penalty confirmed - AT
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Powers of the Commissioner while dealing with penalty appeal are restricted to the penalty proceedings only. He may confirm or cancel the imposition of penalty. He may enhance or reduce the penalty. He cannot give direction to the AO for exploring the additions in an assessment - AT
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Penalty u/s 271(1)(c) - addition on account of undisclosed business income - In the instant case the assessee himself agreed for surrender, so it was a good case to make the addition, however the said surrender itself cannot be considered as a concealment of particulars of income - No penalty - AT
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MAT - Book Adjustments - assessee that brought forward business losses and depreciation of the merging companies is a part of the brought forward business loss and depreciation of Dhariwal Industries Ltd and the assessee is entitled to take into account the same for the purpose of computation of book profit u/s.115JB. - AT
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TPA - The CUP method is not the most appropriate method in the case of the assessee since suitable adjustments are not possible to be made in respect of the above differences. So, the addition on this account is not justified. No adjustment is to be made for determining the arm's length price - AT
Customs
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Rejection of refund claim - Assessment of liquid cargo - The law as it exists clearly lays down that the value on which duty is payable will be the value of goods actually imported into the shore tanks - refund of excess duty allowed - AT
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Revocation of CHA license - Subletting of license - Charge of subletting stands not proved. - appellant is out of business from last more than three years and the said punishment is sufficient in the facts and circumstances of the case - AT
Service Tax
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Cenvat credit on free service provided to customers - the service provided by authorized service station has become input service for the appellant and appellant is entitled to take cenvat credit. - AT
Central Excise
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Confirmation of excise duty by invoking longer period of limitation, without going into the legal issue as to whether the activity amount to manufacture or not, would not be appropriate inasmuch as the appellant was admittedly discharging the service tax liability - AT
Case Laws:
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Income Tax
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2015 (7) TMI 35
Disallowance on account of interest expenses - CIT(A) allowed claim - Held that:- CIT(A) has elaborately discussed the issue and recorded that the assessee was involved in the business of “sub-letting” of properties, and during the relevant year, it had taken 45 properties on rent and paid ₹ 49.20 lakhs, and while on subletting he received ₹ 56.24 lakhs resulting into net surplus of rent shown as business income of ₹ 7.04 lakhs. Assessee has utilized ₹ 47.60 lakhs for purchase of properties from which income of ₹ 14.95 lakhs was earned as rent and shown under the head “income from house property”. The balance amount of ₹ 114.34 lakhs was claimed by the assessee to have been utilized for business of construction. The CIT(A) has further recorded that this fund flow has substance to show clear nexus of utilization of borrowed fund for earning income in the form of interest, rent income and business income of construction, and has paid TDS on the interest payment wherever applicable. There being no material before us to controvert these findings of the CIT(A), we hold that there is no mistake in the order of the CIT(A) in deciding the issue in favour of the assessee. Difference in valuation of closing work in progress - CIT(A) deleted the addition - Held that:- CIT(A) has recorded that the AO has not rejected books of accounts of the assessee and has made addition to closing stock based on the statement of Shri J.P. Shah and inquiry from Inspector without confronting to the assessee. We are unable to appreciate the stand of the AO that structural engineer, shri J.P. Shah, being 77 years of age, and suffering from blood pressure, sugar and other diseases, his certificate could not be relied upon. The CIT(A) has further recorded that the AO’s exercise of such estimation will not result into any substantial Revenue gaining exercise because the assesse after following proper method and accounting standard already reflected profit in respective year and paid taxes thereon. In reply to a specific query from the Bench, the learned counsel for the assessee submitted that project has already completed and its final profit & loss has already been declared and taxed as such by the department. We find that there is no material before us to reject the valuation of work-in-progress which was also supported by certificate of structural engineer, Shri J.P. Shah. In these facts of the case, we hold that there is no mistake in the order of the CIT(A) in directing the AO to accept the valuation of closing work-in-progress as certified by the structural engineer in his certificate, and in deleting the addition - Decided in favour of the assessee.
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2015 (7) TMI 20
Entitlement to claim deduction under Section 80-IA - Held that:- The business undertaking of the assessee is wind mill power generation/hosiery goods, etc., and it has claimed the benefit of deduction under Section 80IA of the Income Tax Act for the assessment year in question and for the subsequent years as well. Having exercised its option and its losses have been set off already against other income of the business enterprise, the assessee in this appeal falls within the parameters of Section 80IA of the Income Tax Act. There appears to be no distinction on facts in relation to the decision reported in Velayudhaswamy Spinning Mills case (2010 (3) TMI 860 - Madras High Court). - Decided in favour of the assessee
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2015 (7) TMI 19
Addition to the appellant's income in terms of Section 28(iv) read with Section 41(1) - ITAT deleted the addition - Held that:- From the ledger account of the concern, it was seen that ₹ 65,66,686/- have been transferred to the appellant's account for the reason that the amount was received on appellant's behalf from M/s.Hi-Tech Trading, Oman. The same was credited to the account of M/s.Hi-Tech Trading, Oman as on 31.3.2000 in the appellant's books which had continued from 2000 to 2006 as Current Liability. This was confirmed by M/s.Hi-Tech Inspection Services LLC, Oman vide their letter dated 30.11.2009. Though the work was done in or around 1996-97, the sales remained to be accounted. However, the sum was not taxable in the relevant assessment year. No substantial question of law for our consideration
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2015 (7) TMI 18
Transfer of a caase u/s 127 - petitioner's case pending with the Income Tax Officer, Mumbai have been transferred to Assistant Commissioner of Income Tax Aurangabad - Held that:- The impugned order does not deal with any of the submissions made by the petitioner resisting the transfer of its case from Mumbai to Aurangabad. Besides, Mr. Tiwari, the learned Counsel appearing for Petitioner informs us that the letter of Director of Income Tax (Investigation), Nagpur which forms the basis of transfer of the petitioner's case was not made available to the petitioners even though the impugned order has been passed relying upon the same. Thus we find that the impugned order has been passed in breach of principles of natural justice in as much as evidence in the form of DIT (Investigation) letter which has been relied upon the impugned order was never furnished to the petitioners. Therefore the petitioner was unable to make appropriate submission with regard to the same. Further, the impugned order is a nonspeaking order as it merely states that the submission of petitioner has been considered and having done so, it is concluded the transfer of the case is warranted. Thus the impugned order is a nonspeaking order and in breach of principles of natural justice in as much as it relies upon evidence of which no notice was given to the petitioners. Accordingly we set aside the impugned order of transfer - Decided in favour of assessee
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2015 (7) TMI 17
Condonation of delay rejected - Held that:- There has been a delay on the part of the appellant in filing the appeal. The Chartered Accountant attending to the appellant's affairs, has owned up before the Commissioner of Income Tax (Appeals) as well as before the Tribunal that the delay was entirely due to a mistake on his part, inasmuch as, after having received the papers from the appellant there was a delay in preparing and filing the appeal before the Commissioner of Income Tax (Appeals). In these facts, we are of the view that, there is no reason to disbelieve the Chartered Accountant and the delay ought to have been condoned as the appellant should not suffer on account of the Chartered Accountant, although the appellant should have been vigilant and followed up with his Chartered Accountant. - restore issue to the Tribunal for fresh disposal on merits. -Decided in favour of assessee.
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2015 (7) TMI 16
Addition made under Section 41(1) - creditors outstanding for more than three years in the books of respondent-assessee - ITAT deleted the addition - Held that:- In the present facts, the amount of ₹ 64.27 lacs continues to be shown as the liability in the respodnent-assessee's balance-sheet for the subject assessment year. The occasion to write back the amount of ₹ 64.27 lacs in this particular case, even unilaterally by the the respondent-assessee has not arisen. This is so as the amount of ₹ 64.27 lacs continues to be shown in its balance-sheet as a liability. Consequently, the occasion to invoke the Explanation1 to Section 41 of the Act does not arise. The settled position in law is that showing the amount due to the creditors in the balance-sheet amounts to acknowledgment of liability. Consequently, the decision of the Apex Court in Kesaria Tea Co. Ltd. (supra) continues to apply in the facts of this case. - Decided against revenue.
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2015 (7) TMI 15
Extension of stay of demand beyond the period of 365 days - revenue has challenged the impugned orders passed by the Tribunal extending stay of demand granted earlier beyond the period of 365 days and in the present case, for approximately 1000 days - Held that:- Applying the decision of the Division Bench of this Court in the case of Small Industries Development Bank of India (2014 (7) TMI 738 - GUJARAT HIGH COURT) to the facts of the case on hand, more particularly while considering the powers of the Tribunal under section 254(2A) of the Act, it is observed and held that by section 254(2A) of the Act, it cannot be inferred a legislative intent to curtail/withdraw powers of the Appellate Tribunal to extend stay of demand beyond the period of 365 days. However, the aforesaid extension of stay beyond the period of total 365 days from the date of grant of initial stay would always be subject to the subjective satisfaction by the learned Appellate Tribunal and on an application made by the assessee / appellant to extend stay and on being satisfied that the delay in disposing of the appeal within a period of 365 days from the date of grant of initial stay is not attributable to the appellant / assessee. For that purpose, on expiry of every 180 days, the appellant / assessee is required to make an application to extend stay granted earlier and satisfy the learned Appellate Tribunal that the delay in not disposing of the appeal is not attributable to him / it and the learned Appellate Tribunal is required to review the matter after every 180 days and while disposing of such application of extension of stay, the learned Appellate Tribunal is required to pass a speaking order after having satisfied that the assessee / appellant has not indulged into any delay tactics and that the delay in disposing of the appeal within stipulated time is not attributable to the assessee / appellant. However, at the same time, it may not be construed that widest powers are given to the Appellate Tribunal to extend the stay indefinitely and that the Appellate Tribunal is not required to dispose of the appeals at the earliest. The object and purpose of section 35C(2A) of the Act particularly one of the object and purpose is to see that in a case where stay has been granted by the learned Appellate Tribunal, the learned Appellate Tribunal is required to dispose of the appeal within total period of 365 days, as ultimately revenue has not to suffer and all efforts should be made by the learned Appellate Tribunal to dispose of such appeals in which stay has been granted as far as possible within total period of 365 days from the date of grant of initial stay and the Appellate Tribunal shall grant priority to such appeals over appeals in which no stay is granted. For that even the Appellate Tribunal and/or registrar of the Appellate Tribunal is required to maintain separate register of the appeals in which stay has been granted fully and/or partially and the appeals in which no stay has been granted. The learned Tribunal is also directed to see that the appeals of a particular assessee with respect same or similar issue involved in earlier years/with respect to respective years are clubbed together and heard and decided and dispose of together, may be with respect to a particular year, it is not a stay granted matter. In the present case, it is reported that the appeal before the learned Tribunal is now heard and the judgment is awaited and it is hoped that the same shall be decided and disposed of at the earliest.
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2015 (7) TMI 14
Agricultural income - assessee was in possession of the land in question for the cultivation of sugarcane from the Maharashtra State Farming Corporation (MSFC) - Held that:- We find that the CIT(A) and the Tribunal have correctly recorded a finding of fact that the Respondent-Assessee did carry on activity of cultivation of sugarcane and the income derived therefrom, is agricultural income. This finding of fact is neither shown to be perverse and/or arbitrary. Therefore, no substantial question of law arises for consideration in the appeal as filed against findings of fact. - Decided against revenue.
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2015 (7) TMI 13
Rectification of mistake - interest income earned from fixed deposits which was to fall within the head 'Income from Business' or 'Income from Other Sources'- Held that:- Fixed Deposits from which the interest had been earned, has been given as security for Term Loans and Overdrafts in appellant’s business and payment of interest on such Overdrafts and Term Loans far exceeds the receipt of interest received on Fixed Deposits. Appellate Commissioner having concluded that the issue involved in the case was contentious one, annulled the order passed by the Assessing Authority under Section 154 of the Income Tax Act, 1961. Said order of Appellate Commissioner is confirmed by the Tribunal. No ground to interfere in the impugned order, inasmuch as, the question as to whether the interest received on Fixed Deposits kept apart for business purposes falls within the business income or income from other sources is debatable point. Such debatable point is beyond the scope of Section 154 of the Income Tax Act, 1961. At an earlier point of time, the Assessing Officer had taken one particular view, since two views were possible. Hence, this is not the case wherein the Authority would have exercised power under Section 154 of the Income Tax Act, 1961. Hence, appeal stands dismissed. Accordingly, substantial question of law is answered against the revenue.
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2015 (7) TMI 12
Addition made under section 68 - CIT(A) deleted addition - Held that:- ITAT after considering the rival contentions and on perusal of material on record, by common order dated 30.06.2009 partly allowed the appeals filed by the department and held that in respect of parties (Sundry Creditors) other than relating to whom additions made by the CIT(A) are to be restored to the assessing officer by casting initial burden on the assessee to discharge such burden by filing confirmation letters of Sundry Creditors and reserving liberty to assessing officer to make verification of the confirmation if felt so necessary and also opining that the assessing officer may call upon the assessee to adduce evidence in the form of producing such parties. For the assessment year 2004-05 the matter was restored back to the file of assessing officer in respect of addition representing the closing balance of fifteen creditors with the liberty being granted to the assessee as well as assessing officer as granted for the assessment year 2003-04. Unapproved sundry creditors - Whether the Tribunal was justified in law in holding that the provisions of Section 69C of the Act would also apply when the expenses incurred towards purchases were not disputed and the payments made were also recorded in the books of accounts? - Held that:- The order of the assessing officer does not indicate about any explanation having called for by the assessing officer from the assessee and such explanation having been not accepted so as to treat the same as income of the assessee for such financial year. However it requires to be noticed from the order of the tribunal that after analyzing the case laws it has been held that section 68 read with section 69C can be invoked in respect of sundry creditors which are not proved by the assessee before the assessing officer. As such we are of the considered view that the principles contained in section 68 as well as section 69C would be squarely applicable to sundry creditors in case of a trader, as obtained in the facts of the present case. Infact, credit purchases are nothing but expenditure and if sundry credits are not proved by the assessee addition can be made by the assessing officer by resorting to section 69C. - Decided in favour of revenue.
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2015 (7) TMI 11
Unexplained fixed deposits and investments in property - appellant contended that the property in question was purchased by him along with four others and that therefore the entire investment cannot be added to his income - Held that:- For the years 2003-2004, 2004-2005 and 2005-2006 the authorities including the Tribunal have concurrently rejected the case of the assessee on the ground that the assessee could not produce any documents substantiating the claims and in fact the Tribunal has also entered a finding that the assertions made by the assessee before the Tribunal were contrary to his own case before the lower authorities. Such being the case, we cannot find fault with the Tribunal in having confirmed the findings of the lower authorities. There is absolutely no explanation regarding his failure in producing the documents before the Assessing Officer. That apart he also has not adduced any evidence at any stage of proceedings. He also did not adduce any evidence regarding the contributions that are allegedly received by him from the other persons who are stated to be the co-owners. Such being the case, the Tribunal's order confirming this order also does not merit any interference. So far as the assessment year 2006-2007 Not only that the details which were allegedly in the possession of the Assessing Officer and which is mentioned in the assessment order were not disclosed to the assessee, but also the Assessing Officer also has not disclosed any such details in the assessment order. This contention has also not been considered by the first appellate authority and the Tribunal. In such circumstances, we are unable to sustain the inclusion of ₹ 15,14,200/- in the income of the assessee for the assessment year 2006-2007, allegedly towards investment made by him in the property. - Decided partly in favour of assessee.
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2015 (7) TMI 10
Entitlement to benefit under Section 80P(2)(a)(i) - whether a voluntary investment made by the assessee and the interest earned from such investment is amenable for the benefit under Section 80P(2)(a)(i) - Held that:- As at presently advised, we are of the opinion that the deposit of non-statutory fund made by the assessee amounts to an investment which is one of the activities of a banking company contemplated under Section 5(b) of the Banking Regulation Act, 1949 quoted above. We find therefore, no reason why the income should not be treated as a business income. It was not disputed by Mr.Bhowmik that if it is the business income then it is amenable to benefit under Section 80P(2)(a)(i). - Decided in favour of assessee.
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2015 (7) TMI 9
Entitlement to claim deduction of the belated payment to Provident Fund - Held that:- In terms of the Explanation to clause (va) of Section 36(1) of the Income Tax Act, such sums paid after the due date cannot be claimed as other deductions in terms of Section 36 of the Income Tax Act. This is pointedly so because in terms of Section 43B of the Income Tax Act, deductions are to be only on actual payment. These two provisions were considered in Hitech (India) Pvt. Ltd., vs. Union of India and others (1996 (12) TMI 23 - ANDHRA PRADESH High Court) in which it was held that a combined reading of clause (va) of Section 36(1) and Section 43B of the Income Tax Act makes it clear that if the assessee (employer) credited any sum received by him from any of his employees on or before the due date, that is, the date by which the assessee (employer) is required to credit the employees' contribution to the employees' account in the relevant fund (including the Provident Fund), he will be entitled to deduct the said amount in computing his business income. But, Section 43B controls the allowability of deduction of payment specified in clauses (a) to (d) thereof and provides certain conditions subject to which alone the deductions may be permissible. Enunciating the point, it was held that deduction would be available only if the remittance to the fund is made within the due date fixed for making such remittance into the fund; in the case in hand, the Provident Fund. So much so, the question referred is to be answered in favour of the Revenue. Hence we answer the reference by holding that on the facts and in the circumstances of the case, the assessee is not entitled to claim deduction of the belated payment to the Provident Fund in view of the provisions of the Explanation to clause (va) of Sections 36(1) and 43B of the Income Tax Act, in the light of the law laid in Hitech (India) Pvt. Ltd., vs. Union of India and others (supra).
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2015 (7) TMI 8
Waiver of the interest charged under Sections 234B and 234C - second respondent in exercise of the powers conferred on him by the Central Board of Direct Taxes under Clause (a) of Sub Section 2 of Section 119 rejected representation of assessee holding that he is authorised to waive interest only in the class of cases and incomes specified in the circulars issued for that purpose by the Central Board of Direct Taxes and that the case of the petitioner does not come under the such specified class - Held that:- The second respondent is empowered and authorised to waive interest payable by the petitioner under Sections 234B and 234C of the Act only if the case of the petitioner falls under any of the three classes of cases referred to. Going by the averments in the writ petition, the case of the petitioner would not come under classes (a) and (c). Coming to class (b), there is nothing on record show as to when the financial institutions have intimated to the petitioner their decision to waive the interest charged on the petitioner. In the absence of any material as to the time at which the petitioner received intimation concerning the waiver of interest granted by the financial institutions, unable to consider the question as to whether the case of the petitioner would fall under class (b) referred to above. Coming to the request made by the petitioner for payment of the balance amount due by way of interest in instalments, it is noticed that the petitioner had already remitted the tax levied on them. In the said circumstances, it is of the view that the petitioner can be permitted to pay the balance amount due, less the interest already paid by them in six monthly installments commencing from 1st of February, 2015. Since the matter is pending before this Court from 8.4.2008, the petitioner shall be absolved from the liability to pay interest for the period during which the writ petition was pending before this Court, and it is ordered accordingly.
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2015 (7) TMI 7
Expenditure towards warranty claim written off - whether was neither allowable under Section 37 nor under Section 36(1)(vii) - Held that:- The assessee company voluntarily recognized and credited warranty expenses of TAFE, PSD in the assessment year 2002-03 and paid taxes on the said amount. In the subsequent year when they were sure that they are not getting any portion of the said amount, they wanted to treat it as a bad debt and write off the said claim. Accordingly, they sought for deduction of the said amount out of the total income. Once the assessee writes off a claim in its books of account treating it as a bad debt under section 36(1)(vii) read with 36(2), the assessee is entitled for deduction of the said amount. However the authorities have proceeded altogether in a different course. They are of the view that the said amount pertains to the previous year. The benefit cannot be given to subsequent year. Secondly, as the said amount is not reflected in the accounts of TAFE, PSD, the assessee is not entitled to the said benefit. In fact, the said facts would support the claim. However in the TAFE and PSD accounts is not shown in their books as due to the assessee. The assessee showing it as due and it is only because the tax is paid in the previous year and in the subsequent year amount not being recovered, it is treated as a bad debt and deduction is claimed. Thus the impugned orders passed by the authorities cannot be sustained. Decided in favour of the assessee.
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2015 (7) TMI 6
Penalty under section 271(1)(c) - unaccounted donations - notice under section 153C - argument of the ld. Departmental Representative was that if AO of the searched person and the assessee is the same it does not make any difference whether satisfaction is recorded in the case of the searched person or the other person - Held that:- The ITAT had arrived at a conclusion that satisfaction was recorded while taking up the cases of other person. This conclusion has been drawn on the basis of material supplied under query made as per RTI Act. It is a factual issue. We are conscious of this fact but we have dealt with the facts in the present case and observed that satisfaction was recorded by the AO while scrutinizing the papers of the searched person. It is very difficult to create a distinction to find out when such satisfaction was recorded when files of both the assessees are lying open upon the table of A.O. The ITAT, Delhi Bench had drawn inference on the basis of facts available in that case. It had not interpreted any provision. We have considered this aspect under the fore going paragraph. Therefore, we do not find any merit in the first fold of submission made by the ld. counsel of the assessee. On examination of the facts, we find that firstly, there is no explanation at the end of assessee, why it has not disclosed these donations in the original return(s)? There is no bona fide in the alleged explanation of the assessee that it had received the money through account payee cheque and, therefore, harbored a belief that donations are genuine. This explanation is wholly for the sake of explanation. The assessee failed to spell out specific facts and circumstances or reason which operated in the minds of its managing director, finance while preparing the return and treating these donations as genuine. Looking to the facts of these five donors, no prudentman would, however, harbor a belief that such companies can give donation. It is pertinent to note that it cannot be a co-incidence or a chance that five companies managed by a common director, having assets of less than ₹ 1 lac, not done any business but would give donations of ₹ 33 crores. These circumstances in itself suggest a well designed scheme at the behest of the assessee, because it is the assessee who is ultimately getting the benefit. Therefore, there was no explanation at the end of assessee for not showing these donations as its income in the original return(s) or in the return(s) filed in response to notice under section 153C. The ld. Commissioner has rightly confirmed the penalty upon the assessee. We do not find merit in the contentions of the ld. counsel for the assessee. Powers of the Commissioner while dealing with penalty appeal are restricted to the penalty proceedings only. He may confirm or cancel the imposition of penalty. He may enhance or reduce the penalty. He cannot give direction to the AO for exploring the additions in an assessment. Direction given by the ld. Commissioner in pargraph 6.3 to 6.7 are contrary to the provisions of law and, therefore, this finding of the ld. CIT(A) is quashed. The penalty imposed by the AO in the cases of KPC Medical College & Hospital is confirmed in all the three years. The appeals are treated as partly allowed for statistical purpose.
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2015 (7) TMI 5
Validity of assessment framed u/s. 153A - Held that:- In view of the second provision of section 153 of the Act, it is clear that assessment or reassessment relating to any assessment year falling within the period of six assessment years pending on the date of initiation of search u/s. 132 of the Act shall abate. It means if on the date of initiation of search u/s. 132 of the Act, any assessment proceedings is initiated relating to any assessment year falling within the period of six assessment years it shall stand abated and revenue cannot proceeding with such proceedings pending assessment after initiation of search. But in case the assessment proceedings are not pending at the time of initiation of search u/s. 132 of the Act, the assessment proceedings will not abate. In view of the facts in entirety and the legal principles enunciated by Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd., [2015 (5) TMI 656 - BOMBAY HIGH COURT] in the case of Shaila Agarwal, [2011 (11) TMI 213 - ALLAHABAD HIGH COURT ] and in the case of All Cargo Global Logistics, [2012 (7) TMI 222 - ITAT MUMBAI(SB)], we are of the view that there is no incriminating material found during the course of search in the present case for these assessment years, except the statement of one Shri Sambhu Kr More, as admitted by the AO in his remand report dated 23.09.2011 and despite number of opportunities revenue could not produce any incriminating material before the Bench and the assessments are already completed for these assessment years originally, the assessments framed u/s. 153A of the Act is invalid and hence, quashed. - Decided in favour of assessee.
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2015 (7) TMI 4
Penalty imposed u/s 271(1)(c) - addition on account of undisclosed business income - Held that:- AO while framing the assessment u/s 143(3) r.w.s 147 of the Act nowhere recorded the satisfaction that the assessee either concealed the income or furnished inaccurate particulars of income. He simply stated that the penalty notice u/s 271(1)(c) of the Act was being issued separately, therefore, in view of the ratio laid down by the Hon’ble Jurisdictional High Court in the aforesaid referred to cases the penalty u/s 271(1)(c) of the Act was not leviable. In the present case, the AO had not arrived at a requisite satisfaction during the assessment proceedings, he simply initiated the penalty proceedings without observing as to whether it was a case of concealment of income or furnishing of inaccurate particulars of income, moreover, when the original assessment was framed u/s 143(3) of the Act, copy of bank account issued by Canara Bank was available to the AO which he later on had considered as fabricated. However, during the course of original assessment proceedings the same was accepted and no fault was found in the said account, even when assessment was framed u/s 143(3) of the Act. However, letter on the case was reopened u/s 147 of the Act by issuing the notice u/s 148 of the Act and the AO inquired about the source of ₹ 50 lac which was entered in the books of accounts by the assessee, the source of the said amount was explained as advance money amounting to ₹ 40 lac received on account of sale of two houses at Charthawal and Muzaffarnagar. The another amount of ₹ 10 lac was claimed to have been received from the father during the family arrangements in the earlier years, but the assessee was unable to produce the parties from whom the advances were received. He, therefore, surrendered the amount of ₹ 50 lac voluntarily and paid the tax on the said surrendered amount subject to no penal action. In the instant case the assessee himself agreed for surrender, so it was a good case to make the addition, however the said surrender itself cannot be considered as a concealment of particulars of income because all the relevant information were already available with the AO who framed the original assessment u/s 143(3) of the Act, it can also not be said to be a case of concealment of income because the AO in the body of assessment order has not stated that it was a concealed income of the assessee or the income for which inaccurate particulars were furnished by the assessee. Accordingly, the penalty confirmed by the ld. CIT(A) which was levied by the AO u/s 271(1)(c) of the Act is deleted. - Decided in favour of assessee.
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2015 (7) TMI 3
Eligibility of Deduction u/s 80HHC - Held that:- In the present case, the assessee is having three units. In unit No. 1, the assessee is manufacturing finished leather which is sold in domestic market or is utilized in manufacturing of leather footwear or goods by other units. In unit No. 2, the assessee is manufacturing complete shoes and leather uppers and other leather goods. In this unit, there is mainly export sales, although there is small amount of domestic sale. In unit No. 3, the assessee is manufacturing leather uppers and bags as well as other leather goods. In this unit also, there is small amount of domestic sale of ₹ 25.10 lacs as well as export sales of ₹ 4,217 lacs. The assessee has claimed deduction u/s 80HHC in respect of unit No. 2 & 3 where domestic sale is very small to the extent of ₹ 98.88 lacs and ₹ 25.80 lacs respectively as against export sale of ₹ 581.48 lacs and ₹ 421 lacs respectively and has not claimed any deduction u/s 80HHC in respect of unit No. 1 where domestic sale is to the extent of ₹ 2,051.83 lacs. The items manufactured in unit No. 1 is finished leather whereas in Unit No. 2 and 3, the finished leather is raw material and end products are leather uppers, complete shoes, leather bags and other leather goods. Under these facts, we find that this unit is having domestic sales and the items of production is different in unit no. 1 as compared to unit No. 2 & 3. Regarding the correctness of the profit reported in these units, we find that deduction was claimed by the assessee u/s 80IB also in respect of Unit No. 2 on the basis of profit as per profit & loss account of Unit No. 2 at ₹ 21,49,626/-. The Assessing Officer has allowed deduction to the assessee u/s 80IB for this unit on the basis of same profit although after making some adjustments in respect of interest income and export benefits. This goes to show that veracity of books of account of Unit No. 2 have been accepted by the Assessing Officer also because he has allowed deduction to the assessee u/s 80IB on the basis of separate profit & loss account of Unit No. 2. Hence, this is not the allegation of the Revenue that unit no. 2 books of account and profit & loss account are not correct and reliable. We also find that it is noted by the Assessing Officer on page No. 5 of the assessment order that from the computation of income filed along with in return of income, it is noticed that the deduction u/s 80HHC has been claimed by the assessee of ₹ 91,28,329/- in Unit No. 2 and ₹ 4,04,200/- in Unit No. 3 totaling to ₹ 1,31,07,417/-. When as per the Assessing Officer, it can be seen in Annexure-A to the assessment order, profit of the business as whole has been worked out at ₹ 1,81,06,614/- before reducing deduction allowed by him u/s 80IB and profit was computed at ₹ 1,32,82,262/- after reducing such deduction allowable u/s 80IB of the Act. Hence, it is seen that the deduction claimed by the assessee is not more than total profit worked out by the Assessing Officer suggesting loss in Unit No. 1. In our considered opinion, under these facts, the judgment of Hon'ble Delhi High Court in the case of Padmini Technologies (2011 (9) TMI 210 - DELHI HIGH COURT ) squarely applicable and respectfully following the same, we hold that in the facts of the present case, deduction is allowable to the assessee in respect of Unit No. 2 & 3 as has been claimed by the assessee. But for the limited purpose of verifying the calculation of the assessee for claiming such deduction u/s 80HHC, we remand the matter back to the file of the Assessing Officer for the limited purpose of verifying the veracity of this computation and to determine the actual deduction allowable to the assessee by taking the profit, export turnover and total turnover of these units No. 2 & 3 only by excluding the figures of Unit No. 1. Computing deduction allowable to the assessee u/s 80HHC - deduction allowable u/s 80IB would not be reduced as per CIT(A) - Held that: - As for the purpose of computing deduction allowable u/s 80HHC of the Act, deduction allowable u/s 80IA is not required to be reduced but for the purpose of allowing deduction u/s 80HHC of the Act, the same can be allowed only to the extent after reducing the deduction allowable u/s 80IA of the Act. It means the total deduction allowable including all sections should not exceed 100% of the taxable profit and gross total of income. Hence, we decline to interfere in the order of CIT(A) on this issue.
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2015 (7) TMI 2
Claim for deduction u/s.80I/80IA rejected - Held that:- As decided the issue against the assessee as reported in Dhariwal Industries Limited. Versus Additional Commissioner Of Income-tax, Range-1, Pune(2007 (8) TMI 410 - ITAT PUNE) holding that Gutkha and Pan Masala manufactured by the assessee company is a "tobacco preparation" within the meaning of Eleventh Schedule of the Income Tax Act. Therefore, the assessee is not entitled to deduction u/s.80I/80IA of the Income Tax Act. - Decided against assessee. Amount received on transfer of sales tax incentive - revenue receipt or capital receipt - Held that:- The various decisions relied on by the Ld. Counsel for the assessee are distinguishable and not applicable to the facts of the present case. Since the Tribunal in the case of the sister concern of the assessee, i.e. Rasiklal M. Dhariwal (HUF) has already given a categorical finding that the sales tax benefits received by the assessee under the instant scheme are in the course of carrying on its trade more profitably, therefore, in absence of any contrary material brought to our notice against the above finding of the Tribunal, we following the decision of the Coordinate Bench of the Tribunal, uphold the order of the CIT(A) upholding the action of the AO in treating the amount received on transfer of sales tax incentive as a revenue receipt. - Decided against assessee. Re-computing the Book Profits u/s.115-JB - Held that:- In view of the direction in the case of Pruthvi Brokers and Shareholders Pvt. Ltd., Court [2012 (7) TMI 158 - BOMBAY HIGH COURT] and the findings of the AO at para 4.1 of the assessment order, we find force in the submission of the Ld. Counsel for the assessee that brought forward business losses and depreciation of the merging companies is a part of the brought forward business loss and depreciation of Dhariwal Industries Ltd and the assessee is entitled to take into account the same for the purpose of computation of book profit u/s.115JB. Depreciation on the related assets of Hyderabad unit - disallowance of claim on the ground that assessee has not used its Plant & machinery relating to Pan masala/Gutkha establishment at Hyderabad at all during the previous year relevant to the A.Y. 2004-05 - Held that:- In the instant case although the assets were not put to use due to restraint by State Govt. due to the notification which was subsequently held to be illegal by the Hon'ble Supreme Court, however, the assets were ready for use and it has already entered into the block of assets. Therefore, in view of the decisions in the case of G.R. Shipping Ltd. [2009 (7) TMI 1169 - BOMBAY HIGH COURT], we hold that the assessee is entitled to depreciation on the assets of Hyderabad unit which have already entered into the block of assets. Accordingly, the order of the CIT(A) is set aside and the ground raised by the assessee is allowed.
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2015 (7) TMI 1
Addition made to the value of international transactions entered into by the assessee with its associated enterprises in respect of export of finished goods and import of goods - Held that:- The transactions of exports of goods, import of goods are all part of the assessee's business. Further, the commission is paid to various parties to boost the sales of the assessee's products. Therefore, the transactions of exports, imports and payment of commission to agents are closely inter related and are part of single business activity of the assessee and the profit earned by the assessee is collective result of all these transactions and hence, it is impractical to analyse the profits of each individual transactions. Accordingly, the assessee has rightly aggregated the above transactions for the purposes of determining the ALP under TNMM. Even if the various transactions are evaluated independently, the net final result remains the same. The assessee has adopted TNMM for determining the ALP for the various transactions and the assessee had contended that its net operating margin is much higher than the comparable companies. This fact has not been disputed by the learned TPO since he himself has accepted that more than 95% of the exports and imports are at ALP as per the TNMM method. Accordingly, even if the various international transactions are evaluated separately, the final result remains the same. The assessee has adopted TNMM wherein the net operating margin of the assessee is compared with the net operating margin of the comparables. Once the net margin of the assessee is higher, it means that all the international transactions entered into by the assessee with its AEs are at ALP. With regard to extent of the pricing of the product depends upon various factors like the geographical location of the vendor, the volume of the order, timing of the order, urgency of requirement, competition in the market, etc. In this regard, reliance was placed on the detailed arguments as taken with regard to adjustment for export as discussed above in paras 3 & 4 of this order. According to him, the pricing depends upon so many factors and suitable adjustments cannot be made to account for such differences. As discussed above in respect of the same party and the same product, the assessee has paid different prices which itself indicates that the pricing is dependent upon various factors for which suitable adjustments could not be made. In this context, refer page 199 of the Paper Book wherein it is evident that the assessee company has paid different prices to Amphenol Aerospace Operations, USA for the same product. Accordingly, in view of the various differences enumerated above. The CUP method is not the most appropriate method in the case of the assessee since suitable adjustments are not possible to be made in respect of the above differences. So, the addition on this account is not justified. No adjustment is to be made for determining the arm's length price in respect of international transactions undertaken by the assessee for the year under consideration.
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Customs
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2015 (7) TMI 26
Rejection of refund claim - Assessment of liquid cargo - manner of assessment - Assessment to be done on the invoice price when duty is payable on ad valorem basis and was to be done on shore tank quantity received when duty is payable on specific rate basis - Held that:- the import of goods into India would commence when the same cross into the territorial waters but continues and is completed when the goods become part of the mass of goods within the country; the taxable event being reached at the time when the goods reach the customs barriers and the bill of entry for home consumption is filed. - in case of NOCIL (2002 (2) TMI 1316 - SUPREME COURT), the Hon'ble Supreme Court affirmed that duty can only be charged on the quantity received in the shore tank. The same view has been reaffirmed by Tribunal in the cases of Ruchi Infrastructure Ltd. (2007 (11) TMI 210 - CESTAT, BANGALORE) and General Foods (2008 (5) TMI 546 - CESTAT, AHMEDABAD). The law as it exists clearly lays down that the value on which duty is payable will be the value of goods actually imported into the shore tanks. - Decided in favour of assessee.
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2015 (7) TMI 25
Waiver of pre deposit - Mandatory pre deposit - Held that:- In view of the provisions of Section 129A, as amended by the Finance Act, 2014, the Tribunal cannot condone the amount of pre-deposit fixed under the statute @7.5% of the amount demanded. Accordingly, the miscellaneous application stands dismissed. However, the appellant is allowed time to make pre-deposit 7.5% of the penalty imposed within a period of eight weeks - Decided against assessee.
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2015 (7) TMI 24
Revocation of CHA license - Subletting of license - whether the work of import/export executed by G and H card holder is an act of subletting or not - Held that:- All G and H card holders are the employees of the appellant. Apart from the employment of the appellant these G and H card holders are providing certain other services to the exporter/importers for that they are provided directly dealing with the importer/exporter but for custom clearances they are working as G and H card holder of the appellant and in the said capacity they are filing the documents. - in the case of M.D. Sadrani (2009 (7) TMI 1108 - BOMBAY HIGH COURT) the fact is that the CHA allowed unauthorised persons to use their CHA licence for consideration which is not the fact in this case the persons who are using the CHA licence and G and H card holders of the appellant. Further, in the case of Shree Venkatesh Shipping Services P. Ltd. (2010 (1) TMI 1057 - CESTAT MUMBAI ), the issue before the Tribunal was that the CHA did not have authorisation in writing from any of the exporters. Admittedly, it was not a case of subletting of CHA license, therefore, the same is not relevant here. Further, we find that in the case of OTA Kandla Pvt. Ltd. (2011 (3) TMI 801 - GUJARAT HIGH COURT) the facts of the case were that the CHA permitting employees of client to use their CHA license before the Custom authorities for monetary gain and removal of goods without obtaining authorisation from importer/exporter. Therefore the said facts are not applicable to the facts of this case. Charge of subletting stands not proved. - appellant is out of business from last more than three years and the said punishment is sufficient in the facts and circumstances of the case and the said view has been taken by this Tribunal in the case of Peak Agencies Vs. CC, Mumbai [2015 (4) TMI 27 - CESTAT MUMBAI]. - Impugned order is set aside - Decided in favour of appellant.
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Corporate Laws
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2015 (7) TMI 36
Penalty of ₹ 10 Lacs under Section 15A(b) of SEBI Act - Non disclosures under Regulation 7(1) of SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 and Regulation 13(1) of SEBI (Prohibition of Insider Trading) Regulations, 1992 - Not an active action, shares increased due to bonus shares - Held that:- It is seen that no effort to quantify disproportionate form or unfair advantage, wherever quantifiable, made as result of default of disclosure under Regulation 7(1) of Takeover Regulations, 1997 or 13(1) of PIT Regulations, 1992 has been made; but it is admitted that it is difficult to make such quantification. It is noticed that no effort has been made to even prove that any unfair advantage or disproportionate gain has come to appellant on a result of non-disclosure of acquisition of 5.36% stake in GEE by appellant. Similarly, no mention of any loss caused to an investor or group of investors as a result of default exists. Hence no cause for any harm to any investors due to non-disclosure has been made. In absence of such mention, it is seen that no such gain or advantage has occurred to appellants or any loss caused to an investor or a group of investors due to acquisition of 5.36% shares or voting rights by appellant in GEE. This is also to be seen from admission of appellant that acquisition of 5.36% of stake by appellant and its non-disclosure was due to their ignorance or non-appreciation of requirement of disclosure, since same occurred mostly by not as active action by appellant but as on result of bonus shares, shares allotted due to amalgamation and again by issue of bonus shares. It may be noticed that provisions of Regulations 7(1) of Takeover Regulations, 1997 and Regulation 13(1) of PIT Regulations, 1992 are not substantially different, since violation of first automatically triggers violation of second and hence there is no justification for imposition of penalty for second violation when penalty for first violation has been imposed. It may be seen that Regulation 7(1) of Takeover Regulations, 1997 and Regulation 13(1) of PIT Regulations, 1992 are not stand alone Regulations and one is corollary of other. - Penalty reduced to ₹ 1 Lacs.
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2015 (7) TMI 23
Claim of Bondholders - Invested in Foreign Currency Convertible Bonds (FCCBs) - Held that:- In the face of the above pendency of matter before the Hon’ble Supreme Court as well as learned City Civil Court at Dindoshi, this Tribunal in the present appeal, is mainly concerned with the impugned order dated April 23, 2014 passed against the appellants. The issue regarding redemption of FCCBs is not directly before this Tribunal. The Tribunal is, therefore, of the considered opinion that SEBI itself is competent enough to defend its order before this Tribunal and interveners do not have a locus-standi to intervene in the facts and circumstances of the present case. Moreover, permitting intervention by shareholders or Bondholders in any appeal filed by a company against the order passed by SEBI / Stock Exchanges would mean opening a flood-gate and in such a case it would be impossible to dispose of the appeals filed before this Tribunal. It is true that in a given case, the Tribunal may be inclined to allow an application for intervention on behalf of an affected party but it cannot be generalized. Summing up the position, thus, we reiterate the settled legal position that a wrong, having come to our notice, cannot be allowed to be perpetuated. The shareholders / bondholders, who were never heard or impleaded as a necessary or even as a proper party in proceedings before the SEBI at the first instance, cannot be allowed to be implanted as interveners by this Appellate Tribunal in the ordinary course. - Applications disposed of. No observation is made on the merit of the respective contentions of the parties.
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2015 (7) TMI 22
Application for dispensation of meeting - Sections 391 & 394 of the Companies Act, 1956 - Error in share exchange ration - Held that:- On an examination of the application, it is noticed that the share exchange ratio as mentioned in the application is adopted from the Valuation Report dated 16th August, 2014 furnished by M/s. P. K. Katyal & Co., Chartered Accountants (page 209, Annexure II). Unfortunately, the applicants adopted the same without maintaining a common sequence in the Memo of Parties. Furthermore, the fourth share exchange ratio mentioned in the valuation report has wrongly been stated in the Scheme. Even though the transferor companies are wholly owned subsidiaries of the transferee company, which is the ultimate beneficiary of this Scheme, but that does not entitle the applicants to present incorrect facts in the application. The application has been drafted in a very casual manner and needs a thorough relook. - Applicants directed to file an affidavit clarifying the aforesaid discrepancies.
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Service Tax
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2015 (7) TMI 34
Cenvat credit on free service provided to customers - Held that:- In this case the authorized service station is providing service on behalf of the appellant and appellant is required to pay the cost of service along with service tax to the authorized service station who has provided service on behalf of the appellant to the owner of the vehicle. Therefore, the service provided by authorized service station has become input service for the appellant and appellant is entitled to take cenvat credit. - Decided in favour of assessee.
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2015 (7) TMI 33
Penalties under Sections 76, 77 and 78 - GTA services - Held that:- From the records it is seen that the issue relates to short-payment of service tax on GTA services. As soon as the same was pointed out, the appellant willingly and voluntarily discharged the service tax liability along with interest on 23/11/2009. Therefore, the matter should have been closed there itself. Section 73(3) of the Finance Act, 1994 provides for closure of all proceedings in a case where service tax liability along with interest is discharged by the appellant on his own or on being pointed out by the department. In spite of the specific provisions, department has proceeded to keep the matter alive by issuing the show cause notice without any rhyme or reason. In any case, the authorities should have waived the penalty by exercising the discretion under Section 80 of the Finance Act, 1994. - Decided in favour of assessee.
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2015 (7) TMI 32
Commercial or Industrial Constructions Services - construction of educational institutes - Held that:- First appellate authority as well as the adjudicating authority have clearly recorded that construction activity undertaken by the appellant/assessee was in respect of various activity undertaken by the appellant/assessee was in respect of various educational institutes. The definition of commercial and industrial construction services specifically excludes from service tax, the construction activity, which are no commercial or industrial in nature. We find that an identical issue, this bench had taken a view in the case of Anand Construction vs.CCE - [2013 (3) TMI 250 - CESTAT MUMBAI] took a view has that construction of hostel or the residence of students studying in medical institute does not get covered under the category of commercial - or industrial construction service. - construction activity undertaken by the appellant/assessee in this case is for educational institution; following the ratio laid down by the Tribunal's decision, we hold that revenue's appeal is devoid of merits and is rejected. - Decided in favour of Assessee.
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2015 (7) TMI 31
Challenge to legality and validity of demand notice -Initiation of recovery proceedings with out relying on earlier decision on the same matter i.e Circular No.967 /01/2013-CX dated 1.1.2013 declared non east by the court 8 months back - Contempt petition against excise Assistant Commissioner - Held that:- With the legal position having been concluded by this Court more than 8 months back in the case of Manglam Cement Ltd. v. The Superintendent, Central Excise Range-III, Kota & Ors [2013 (4) TMI 102 - RAJASTHAN HIGH COURT] dated 01-3-2013 ; and in no uncertain terms, this Court having pronounced the Circular in question “non est” insofar relating to the situation where the stay applications remain pending in the appellate fora, it sounds rather strange that the concerned Assistant Commissioner, Central Excise Division, Udaipur has at all chosen to issue the questioned notice on the basis of the same Circular. Prima facie, the aforesaid demand notice dated 12-9-2013 (Annex. ‘F’) as also the communication dated 3/7-10-2013 (Annex. ‘J’) are of a show of total disrespect to and defiance of the order passed by this Court. The order passed by this Court on 1-3-2013, both in its letter as also in its spirit, leaves nothing to doubt or guess that this Court has pronounced the impugned Circular dated 1-1-2013 non est in relation to the situation as obtaining in the present case. Any attempt to yet initiate to coercive proceedings on the basis of the this very Circular gives rise to serious questions on the approach and intentions of the respondents. Having regard to the circumstances, we feel impelled that even while admitting this writ petition and staying operation of the impugned order, a notice be issued to the Assistant Commissioner, Central Excise Division, Udaipur and the Additional Commissioner (Recovery), Central Excise Commissionerate, Jaipur-II to show cause as to why the proceedings for having committed contempt of the order of this Court dated 1-3-2013 as passed in DBCWP No. 1891/2013 be not initiated. - Stay granted.
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Central Excise
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2015 (7) TMI 30
Waiver of pre deposit - Imposition of penalty u/s 11A - SCN Issued after 1 year of imposition of penalty - Held that:- Taking note of the fact that entire amount has been paid and provisions of Section 11A requires much more detailed consideration and also taking note of the fact that Hon'ble High Court of Gujarat has taken a view that Rule 8(3A) is ultra vires, the appeal itself could have been allowed, but for the fact that the Department has filed an appeal, at this stage, final decision need not be taken. In view of the above discussion, the requirement of pre-deposit of penalty is waived and recovery thereof is stayed during the pendency of the appeal. - Stay granted.
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2015 (7) TMI 29
Levy of penalty u/s 11C - Duty demand - Shortage of goods - Clandestine removal of goods - Held that:- Appellant has paid the duty at the time when shortage was detected. Later on, the department issued a show cause notice for appropriation of duty paid by the appellant and imposition of penalty. The appellant did not contest the duty liability but contested only penalty till the level of Commissioner (Appeals). When learned Commissioner (Appeals) has given a finding that there is no tangible evidence of clandestine removal of goods, therefore appellant cannot be allowed to contest the duty liability taking support of Hri Sidhdata Ispat Pvt. Ltd. In Impugned order the learned Commissioner (Appeals) has given a clear finding that there is no tangible evidence of clandestine removal of goods. In these circumstances, without challenging the said order by the Revenue, I hold that penalty on appellant is not imposable. - Decided in favour of assessee.
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2015 (7) TMI 28
Non compliance of direction given in stay order - applicant was directed to pre-deposit 50% of the amount of duty confirmed by the adjudicating authority - Held that:- the applicant submits that they have deposited only ₹ 30 Lakh. He further submits that they have filed an application before the Hon'ble High Court for extension of time for compliance of the stay order. We find that the Hon'ble High Court by order dated 10.10.2014 extended the time for compliance of the stay order up to 31.12.2014. However, the applicant neither produced the compliance report nor any further order from the Hon'ble High Court. - appeal is dismissed for non-compliance - Decided against assessee.
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2015 (7) TMI 27
Manufacturing activity or taxable service - Activity of fabricating various iron and steel items by cutting, drilling and making holes etc. - Held that:- confirmation of excise duty by invoking longer period of limitation, without going into the legal issue as to whether the activity amount to manufacture or not, would not be appropriate inasmuch as the appellant was admittedly discharging the service tax liability on the activity undertaken by them with the due knowledge of the Revenue. As regards service tax, learned advocate fairly agrees that the same was collected from their customers but not deposited with the Revenue. In view of the above, we direct the applicants to deposit ₹ 30,00,000 within a period of twelve weeks - stay granted towards demand of duty of excise.
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Indian Laws
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2015 (7) TMI 21
Condonation of delay in appeal by more than 10 years - Appeal under Section 54 of the Land Acquisition Act, 1894 - Some other persons filed appeal in time and also got a higher compensation - Held that:- In State of Karnataka & Ors. v. S.M. Kotrayya & Ors. [1996 (9) TMI 603 - SUPREME COURT] , this Court rejected the contention that a petition should be considered ignoring the delay and laches on the ground that he filed the petition just after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches. Same view has been reiterated by this Court in Jagdish Lal & Ors. v. State of Haryana & Ors. [1997 (5) TMI 423 - SUPREME COURT]. In M/s. Rup Diamonds & Ors. v. Union of India & Ors.[1989 (1) TMI 217 - SUPREME COURT OF INDIA], this Court considered a case where petitioner wanted to get the relief on the basis of the judgment of this Court wherein a particular law had been declared ultra vires. The Court rejected the petition on the ground of delay and laches. - Decided against the appellants.
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