Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
July 26, 2016
Case Laws in this Newsletter:
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
Articles
News
Highlights / Catch Notes
Income Tax
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Eligibility of deduction U/s 10B - furnishing of the declaration in terms of Section 10B(8) of the Act is merely a formality and declaratory in nature and is not mandatory. If the assessee is having positive income then only there is occasion to claim the deduction. - AT
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Income from house property - The assessee has to prove that this bungalow was purchased with borrowed funds. But neither the bungalow was ready for self-occupation nor the assessee has given a choice. Thus, under this head also the assessee is not entitled for deduction of an interest expenditure. - AT
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Even in the case of charitable hospital, it is not possible to provide medicines to every patient, free of cost. It is only in very deserving cases, a charitable institution could provide medicines free of cost. Thus we find that the collection received by the assessee from its pharmacy section cannot be excluded from computing the income eligible for exemption u/s 11 of the Income-tax Act, 1961 - AT
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AO is not justified in treating the original return of income as invalid for belated receipt of Form ITR-V. - AO directed to grant the benefit of the determined business losses for future years. - AT
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TPA - it is since the parameters laid down in sub-section (1) are not fulfilled, there is no relationship of AE between assessee-company and JII and therefore, the provisions of chapter X of the Act have no application. In the result, the transfer pricing adjustment made by the TPO is not valid in law. - AT
Customs
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Seeking interest on delayed refund amount within a time bound period - The interest in terms of Section 27A(1) of the Customs Act, 1962 shall be released and the sum paid as expeditiously as possible and within a period of twelve weeks from the date of receipt of a copy of this order. - HC
Service Tax
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Levy of penalty - Valuation - service tax liability on TDS amount and reimbursements - Appellant's case deserves a waiver of penalty under Section 78 of the Finance Act, 1994 in view of Section 80 of the Finance Act, 1994 as it existed during the period of dispute. - AT
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Scientific and Technical Consultancy Charges - assistance provided to Joint Venture partner including procurement/ purchase of moulds, machineries, drawings, designs etc. - Demand set aside - AT
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Cenvat Credit - Input services - certain documents called "debit notes" issued by the service provider - All the details of the service provided is recorded in the debit notes - Credit allowed - AT
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Cenvat credit - input services where service tax was paid under reverse charge - Goods Transport Services (GTA) and Business Auxiliary Services (BAS) - service tax liabilities on these two services have been discharged by them by debiting the cenvat credit account and not by cash - credit cannotbe denied - AT
Central Excise
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Claim of exemption - To take a view that the benefit can be extended only to those pipes which physically carry water and deny it to those which are used as Casing pipes (which are also needed for delivery of water) would defeat very purpose of the Exemption Notification meant for giving the benefit to water treatment plants. - AT
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Cenvat credit availed on inputs and inputs contained in final products lost due to fire - correctness of denial of credit which are attributable to the credit on inputs which are already used in the manufacture of final products and such final products is lost in fire - Demand and penalty both set aside - AT
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Refund - unjust enrichment - higher duty paid on lead acid batteries - issuance of credit notes - There would be nothing unjust where the person who has paid duty and has not passed on that burden to another receives refund thereby reducing the burden which he was not required to bear but had bore. - AT
Case Laws:
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Income Tax
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2016 (7) TMI 1016
Eligibility of deduction U/s 10B - Held that:- Admittedly, the assessee was not having any positive income from the export of articles on account of activities in the export oriented unit, therefore, in our view, there is no occasion for the assessee to claim deduction U/s 10B of the Act. Since there is no positive income, there was no occasion for the assessee to file certificate in terms of Section 10B(8) of the Act. Even otherwise, though, the assessee can withdraw the declaration given at any time. Therefore, in our opinion, furnishing of the declaration in terms of Section 10B(8) of the Act is merely a formality and declaratory in nature and is not mandatory. If the assessee is having positive income then only there is occasion to claim the deduction. Admittedly, the positive income accrued to the assessee in the assessment year 2002-03 and from there onward the assessee has claimed the deduction U/s 10B of the Act for a period of 10 years. In view thereof, the order passed by the ld CIT(A) is confirmed and the appeal of the revenue is dismissed. - Decided in favour of assessee
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2016 (7) TMI 1015
Deduction of interest expenditure - income from house property - annual value determination - Held that:- Section 23 contemplates the manner as to how annual value will be determined. Section 24 provides certain deductions against house property income. Now in the present case, the assessee has no income from Bungalow No.2 at Deep Mangal Society. His income under the head “Income from house property” has also not been shown. If we look to the scheme of section 24(b) along with two proviso, then it would reveal that if the assessee had given a choice for self-occupied property with regard to the Bungalow No.2, and then under first proviso he could claim deduction to the extent of ₹ 30,000/-, and if it establishes fulfillment of conditions provided in second proviso, then to the extent of ₹ 2.00 lakhs. The assessee has to prove that this bungalow was purchased with borrowed funds. But neither the bungalow was ready for self-occupation nor the assessee has given a choice. Thus, under this head also the assessee is not entitled for deduction of an interest expenditure. In view of the above discussion it is concluded that under both the fold of propositions, the assessee is not entitled for the deduction of interest expenditure. - Decided against assessee Adhoc disallowance - Held that:- The assessee failed to establish that the expenditure was exclusively incurred for the purpose of business or profession. Possibility of user of car for personal purpose cannot be ruled. Therefore, adhoc disallowance made by the AO and confirmed by the ld.CIT(A) is justified - Decided against assessee
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2016 (7) TMI 1014
Depreciation disallowed to assessee trust - Held that:- The issue raised by the revenue in the ground of appeal is thus no longer res integra and has been decided in the case of CIT v. Market Committee, Pipli [2010 (7) TMI 374 - Punjab and Haryana High Court ] wherein held that depreciation is allowable on capital assets on the income of the charitable trust for determining the quantum of funds which have to be applied for the purpose of trusts in terms of section 11 of the Act. Addition on account of advance fee received treated as income of the assessee trust - Held that:- it is well settled law that the statement recorded under Section 133A cannot be sole basis for making an addition or disallowance without corroborating evidence. In this case, the authorities below have not shown in their findings that any corroborating evidence was found to support this statement recorded under Section 133A of the Act. In view of the above facts and circumstances, we find that the addition made by the Assessing Officer based on the statement recorded under Section 133A and further by giving a reason that the assessee has used the advance fees received for revenue as well as capital expenditure is not justified and accordingly we set aside the orders of authorities below qua this issue and remit the same to the record of the Assessing Officer to re examine the issue from the record produced by the assessee and then decide the same as per law. Addition on account of “retention money” - Held that:- When the retention money is retained by the assessee for refund in future on completion of project then it is only a liability in the hand of the assessee and therefore the same cannot be treated as income. However at the same time the assessee cannot be allowed to take the benefit of the said amount being used for expenses and investment being application of income. Therefore if the assessee is having sufficient fund to cover this amount then the claim of the assessee under Section 11(1)(a) on account of application of income would not be effected otherwise to the extent of the amount used from the retention money the claim would be reduced. Accordingly, we direct the Assessing Officer to verify all the relevant facts on this issue and then decide the same only on question of allowing the deduction of application of income and not treating the retention money as income. Addition as income from pharmacy - Held that:- The entire amount cannot be treated as the income earned by the assessee from the sale of medicines to the outside public when the pharmacy is within the premises of the hospital and attached to the hospital. It is pertinent to note that a dispensary/pharmacy is inevitable and indispensable facility for the hospital. The assessing authority has erred both on facts and in law in holding that the pharmacy run by the assessee-society is a separate unit, running as a business. The Assessing Officer has observed that the assessee-society has maintained separate accounts for the pharmacy section. Maintaining accounts separately for pharmacy section does not decide the nature of the activities carried on by the assessee through running of the pharmacy. Separate accounts are maintained by the assessee for the purpose of proper accounting and internal control. Even in the case of charitable hospital, it is not possible to provide medicines to every patient, free of cost. It is only in very deserving cases, a charitable institution could provide medicines free of cost. Thus we find that the collection received by the assessee from its pharmacy section cannot be excluded from computing the income eligible for exemption under Section 11 of the Income-tax Act, 1961. The pharmacy collection also forms part of the collections accounted by the assessee from its charitable activities. Therefore, Assessing Officer is directed to give exemption under Section 11 in respect of the pharmacy collection as well. Allowing the 15% accumulation on net income of the assessee instead of gross receipts as claimed by the assessee - Held that:- Following the decision of the co-ordinate bench of this Tribunal in Capuchin Friar Services of Society [2015 (12) TMI 448 - ITAT BANGALORE] we decide this issue in favour of the assessee and direct the Assessing Officer to consider the allowable accumulation of income at 15% of the gross receipts. Disallowance of deduction being the liability for capital expenditure - Held that:- Assessing Officer as well as the CIT (Appeals) has doubted the expenditure laid out by the assessee whether by the payment or of credit. Therefore we are of the considered opinion that this issue require a proper verification on production of the relevant evidence and details by the assessee. Accordingly, this issue is set aside to the record of the Assessing Officer for proper verification and examination of the record to be produced by the assessee and then decide the same as per law. Appeal of the assessee partly allowed.
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2016 (7) TMI 1013
Entitled for depreciation on goodwill - carry forward losses - belated submission of ITR-V - Held that:- As decided in SMIFS Securities Ltd [2012 (8) TMI 713 - SUPREME COURT ] Explanation 3 states that the expression `asset' shall mean an intangible asset, being know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature. A reading the words `any other business or commercial rights of similar nature' in clause (b) of Explanation 3 indicates that goodwill would fall under the expression `any other business or commercial right of a similar nature' - Decided in favour of assessee. Denial of carry forward losses on the ground of belated receipt of Form ITR-V - Held that:- In the present case, the AO has not intimated any defect in the return of income filed to the appellant and therefore the action of the AO in treating the original return of income as invalid does not stand the test of the law. Even otherwise, it is not the case of the AO that the appellant had not posted Form ITR-V within the prescribed time limit. The Hon’ble Bombay High Court in the case of Crawford Bayley & Co. v. UOI, [2011 (12) TMI 64 - BOMBAY HIGH COURT ] , held that the action of the AO declaring return of income invalid for non-receipt of ITR-V was invalid. Respectfully following this decision, we hold that the AO is not justified in treating the original return of income as invalid for belated receipt of Form ITR-V. We therefore direct the AO to grant the benefit of the determined business losses for future years.- Decided in favour of assessee.
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2016 (7) TMI 1012
Transfer pricing adjustment u/s 92CA - the assesseecompany raised the jurisdiction issue for invoking the provisions of chapter X of the Act - existence of relationship of AE between assessee-company and JII - Held that:- The definition of the term AE is divided into two subsections (1) and (2). Sub-sec.(1) contains(means) definition of AE is .para meters of management control or capital of that enterprise. Sub-sec.(2) contains a deeming provision and also enumerates circumstances when the enterprise can be deemed to be AE. The opening words of sub-sec.(2) are amended by Finance Act, 2002 w.e.f. 1/4/2002 . The resultant of the amendment is thus explained that unless the requirements of sub-sec.(2) are fulfilled, the sub- section (1) cannot be applied at all. This implies that in order to constitute relationship of an AE, the parameters laid down in both subsections (1) and (2) should be fulfilled. If we were to hold that there is a relationship of AE, once the requirements of sub-sec.(2) are fulfilled, then the provisions of sub-sec.(1) renders otiose or superfluous. Now, it is well settled canon interpretation of statutes that while interpreting the taxing statute, construction shall not be adopted which renders particular provision otiose. When interpreting a provision in a taxing statute, a construction, which would preserve the purpose of the provision, must be adopted. If more than one construction is possible, that which preserves its workability and efficacy is to be preferred to the one which would render it otiose or sterile. In that view of the matter, courts should not adopt construction which would upset or even impair the purpose in introducing a particular provision in the statute. Therefore, following this principle, we hold that it is since the parameters laid down in sub-section (1) are not fulfilled, there is no relationship of AE between assessee-company and JII and therefore, the provisions of chapter X of the Act have no application. In the result, the transfer pricing adjustment made by the TPO is not valid in law. - Decided in favour of assessee. Addition u/s 14A - Held that:- Now, law is fairly settled that no disallowance under clause (iii) of sub-rule (2) of rule 8D can be made without rendering a finding as to how the claim of the assessee that no expenditure was incurred, is incorrect. When the assessee had not incurred any expenditure, the question of disallowance u/s 14A does not arise as per law laid down by the Hon ble Karnataka High Court in the case of Canara Bank Vs. Asst.CIT (2014 (1) TMI 1586 - KARNATAKA HIGH COURT ) In the circumstances, we remit the matter back to the file of the AO for de novo assessment on this issue as per law - Decided in favour of assessee by way of remand. Disallowance of deduction u/s 80JJAA - Held that:- This ground is covered in favour of the assessee-company in its own case for assessment years 2007-08 and 2008-09 . Respectfully following the order of the Tribunal, we remit the issue back to the file of the AO for de novo examination of the claim in accordance with provisions of law.- Decided in favour of assessee by way of remand.
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2016 (7) TMI 1011
Processing fees for acquiring the term loans from the Banks - nature of expenditure - revenue or capital - Held that:- The assessee being an investment & finance company and a promoter of new companies and having interest in the business of these companies has made the investments for business purposes for having control over these subsidiary and associated companies, hence, in the light of the proposition of law laid down by the Hon’ble Bombay High court in the case of “CIT, Panaji, Goa vs. Phil Corpn. Ltd.”(2011 (6) TMI 187 - BOMBAY HIGH COURT ), Hon’ble Delhi High Court in the case of “Eicher Goodearth Ltd. vs. CIT” (2015 (5) TMI 685 - DELHI HIGH COURT) and the Hon’ble Supreme Court in “S.A. Builders vs. CIT” (2006 (12) TMI 82 - SUPREME COURT), no interest disallowance is attracted u/s 36(iii) of the Act. On the same analogy, the processing fees paid by the assessee for obtaining such loans is also allowable as business expenditure. More over the issue is covered with the decision of the Hon’ble Supreme Court’ in the case of India Cements Ltd. v. CIT [1965 (12) TMI 22 - SUPREME Court] wherein the Supreme Court held that the expenditure in raising loans or issuing debentures would be revenue in nature, irrespective of whether the borrowing is a long term or short term one. This issue is accordingly decided in favour of the assessee. Disallowance of expenditure in the shape of upfront fees and brokerage etc. paid for issuing the non-convertible debentures - Held that:- This issue is also covered with the decision of the Hon’ble Supreme Court’ in the case of India Cements Ltd. v. CIT [1965 (12) TMI 22 - SUPREME Court] wherein the Supreme Court held that the expenditure in raising loans or issuing debentures would be revenue in nature, irrespective of whether the borrowal is a long term or short term one. It was held that the act of borrowing money was incidental to the carrying on of business, the loan obtained was not an asset or an advantage of enduring nature, the expenditure was made for securing the use of money for a certain period and it was irrelevant to consider the object with which the loan was obtained. This issue is accordingly decided in favour of the assessee. Alowability of deduction under section 10A - Held that:- This issue is squarely covered with the decision of Hon’ble Bombay High Court in the case of “CIT vs. Black & Veatch Consulting Pvt. Ltd.” (2012 (4) TMI 450 - BOMBAY HIGH COURT ) wherein held that the deduction under section 10A has to be given at the stage when the profits and gains of business are computed in the first instance and thus the brought forward unabsorbed losses cannot be set off against current profit of the section 10A eligible unit for computing the income of the assessee. That the unabsorbed losses have to be deducted only from the profit available after allowing deduction u/s 10A. The Ld. D.R. has not brought any decision contrary to the above decision of the Hon’ble Bombay High Court. - Decided in favour of assessee
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2016 (7) TMI 1010
Penalty u/s 271(1)(c) - Held that:- Where an agreeable, controversial or debatable deduction is claimed, the claim could not be false, otherwise, it would become impossible for any assessee to raise any claim or deduction which might be debatable and it was not the intention of the legislature to make punishment such claims, if they were not accepted. The ld. CIT(A) rightly concluded that there was no furnishing of inaccurate particulars of income. From the above, it could be safely concluded that as per Explanation 1 to section 271 ( c ) of the Act no penalty could be imposed on the assessee in the facts of the case. - Decided in favour of assessee
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2016 (7) TMI 1009
TDS u/s 194C - disallowance on account of advertisement expenditure on the basis that the TDS was not deducted - Held that:- The matter requires re-consideration at the level of the ld. CIT(Appeals). The assessee filed copy of certificate from Association at page 13 of the Paper Book in which it was certified that the association gives advertisement of all the learning centres of Punjab Technical University, Distance Education Program in Punjab to the print media. The shares of cost of advertisement is recovered from the regional centres. The amount in question was recovered from the assessee as its share for advertisement. The entire TDS of whole amount was deducted and deposited in the bank. PB-14 to 54 are the details of TDS deducted by association and paid - Decided in favour of assessee by way of remand. Disallowance on account of interest - Held that:- The assessee is proprietor of Chandigarh Computer Centre and in the assessment year under appeal, has capital of ₹ 14,51,117/-. The net profit in the year under consideration comes to ₹ 6,90,288/-, thus, total capital of assessee comes to ₹ 21,41,405/-. Further, assessee has interest free unsecured loan of ₹ 5 lacs from Shri Joginder Singh. These amounts/funds are sufficient to cover up the interest free advances given to the family members in a sum of ₹ 14,25,000/-. Hon'ble Punjab & Haryana High Court in the case of Kapson Associates [2015 (8) TMI 1277 - PUNJAB AND HARYANA HIGH COURT ] held that " when assessee having sufficient interest free advances to cover interest free advances, no disallowance under section 36(1)(iii) could be made". Following the above judgement and considering facts of the case, set aside the orders of authorities below and delete the addition - Decided in favour of assessee Addition paid on account of franchise fees as capital expenditure - Held that:- In the way of obtaining franchise for educational program and paying licence fees, no capital asset came into existence and there was no advantage of enduring benefit to the business of the assessee. Since there is no existence of any asset and no enduring benefit have been taken by the assessee, therefore, authorities below were wholly unjustified in considering it to be capital expenditure in nature. The expenses are clearly revenue in nature - Decided in favour of assessee
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2016 (7) TMI 1008
Penalty proceedings u/s. 271AAA - AO brought to tax the seized cash as income from undisclosed sources - Held that:- In the case of Concrete Developers (2013 (11) TMI 1326 - ITAT NAGPUR) the Tribunal has held that where the assessee had disclosed certain amount during the course of search and had paid taxes thereon, filed return showing said income as business income and same had been accepted by the AO under the head ‘business income’, penalty u/s. 271 AAA was not leviable. In the case of Pramod Kumar Jain (2012 (12) TMI 629 - ITAT CUTTACK ), it has been held by the Tribunal that there was no prescribed method to indicate the manner in which income was generated. Considering the facts that the assessee had paid taxes on the undisclosed income and had stated the seized cash represented his professional income, we are of the opinion that no penalty is leviable u/s. 271AAA of the Act. In our opinion, the judgment delivered by the Hon’ble Gujarat High Court in the case of Mahendra C. Shah (2008 (2) TMI 32 - GUJARAT HIGH COURT ) support the view taken by the Tribunal in the above mentioned cases. So, reversing the order of the FAA, we decide effective ground of appeal in favour of the assessee .
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2016 (7) TMI 1007
Revision u/s 263 - deemed dividend u/s. 2(22)(e) - Held that:- The loan or advance or payment is, under such circumstances, to be deemed as dividend to the extent the paying company has accumulated profits, the exception being where the lending company is in the business of money lending. We have already noted satisfaction of all the required conditions in the present case, as well as of the lending companies being not in the money lending business, so that exceptions to the provision are excluded. It is clearly limb (b) supra that is attracted in the present case, and which does not provide for a further requirement to show that the monies were intended for the benefit of such shareholder. There is nothing in the decision to suggest such a benefit being required to be shown in all cases. In the facts of that case, it was limb (c) supra that was applied. The assessee- respondent in Mukundray K. Shah (2007 (4) TMI 201 - SUPREME Court) did not in fact have substantial interest in both the concerns, MKF and MKI, so that limb (b) could not, in any case, be applied. In fact, the assessment in that case was of ‘undisclosed income’, on the basis of a dairy seized in search, and which revealed the source of funds invested by the assessee in bonds, tracing the source thereof (on the basis of the said diary) to two concerns, and which had been, in turn, released funds by the payer company in which (the assessee) had substantial interest. It was on that basis that the provision of section 2(22)(e) became applicable - Decided against assessee
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2016 (7) TMI 1006
Disallowance under Section 14A - Addition for cessation of liability under section 41(1) - Held that:- Respectfully following the findings of the Hon’ble Jurisdictional High Court in the case of Cheminvest Vs. CIT (2009 (8) TMI 126 - ITAT DELHI-B ), we hold that no disallowance under section 14A of the Act is called for in the case of the assessee as no exempt income was received or receivable during the year under consideration. - Decided in favour of assessee Addition for cessation of liability under section 41(1) - Held that:- In the facts of the instant case, we find that the assessee has not remitted the liability in its books of accounts. It is the Assessing Officer who has presumed that those parties no longer existed or have written off the amounts in their books of accounts. The Assessing Officer has not verified from those parties whether they have forgone their claim or the liability has become unenforceable at law by the creditor and the debtor declared unequivocally his intention not to honour his liability when payment is demanded by them. As we find that the assessee has not remitted the credit balances in respect of the above parties, the assessee has not obtained any benefit in respect of such trading liability and, therefore, provisions of section 41(1), are not applicable to the facts of the case in hand. Thus we hold that the assessee has not obtained any benefit in respect of the creditors by way of remission or cessation thereof and, therefore, no addition can be made in the assessment year under consideration under section 41(1) of the Act - Decided in favour of assessee
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2016 (7) TMI 1005
Validity of reopening of assessment - Held that:- From the entire reading of the order of assessment we are of the considered view that the Assessing Officer has dealt with the objections in the assessment order itself in a composite manner. The Assessing Officer should have passed a speaking order before proceeding for assessment, and in this case, the Assessing Officer has not passed a well-reasoned speaking order which was required as per the principles of natural justice as well as the principles laid down by the above judicial pronouncements. Apart from this, as per the entire order of assessment u/s 143(3) r.w.s. 147 there was no new tangible material on record before the Assessing Officer, and in the absence of any new tangible material on record, the order of the Assessing Officer for reopening is bad in law After considering the entire facts of the case and the legal position in the aforementioned cases, we are of the considered view that there is no need to go further in this case when once we are convinced that principles of natural justice as well as the principles laid down by the above judicial pronouncements have not been fully complied with by the Assessing Officer while passing the order of assessment u/s 143(3) r.w.s. 147 of the Act. Therefore, in our considered view the order passed by the Assessing Officer is bad in law and therefore stands quashed. - Decided in favour of assessee
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2016 (7) TMI 1004
Reopening of assessment - deduction claimed u/s 80IB - Held that:- The assessee had furnishes details and explanations which were considered by the AO and the deduction claimed in the return of income was duly accepted, the AO cannot reopen assessment for the reason that deduction u/s 80IB was wrongly allowed and doing so would amount to reopening assessment on a change of opinion. In the facts and circumstances of the present case we are of the view that the belief entertained by the AO cannot be said to be a honest belief. For the reasons given above we are of the view that the initiation of reassessment proceedings in the present case was not legal and therefore the order of re-assessment is liable to be annulled and is hereby annulled. In view of the decision of the Cross Objection we are of the view that no adjudication of the grounds raised by the revenue in its appeal is called for. Eligibility of deduction u/s 80IC - Held that:- CIT(A) has rightly come to the conclusion that in respect of unit which claimed deduction earlier u/s 80IB of the Act such unit will continue to get the benefit of deduction of 80IC of the Act subject to the limitation of ten year period. The deduction for an undertaking making substantial expansion of the existing undertaking is not applicable in the case of the assessee. We are of the view that the conclusions drawn by CIT(A) on this issue are fully justified and does not call for any interference. Accordingly this appeal of the revenue is dismissed.
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2016 (7) TMI 1003
Computation of long term capital gain on sale of inherited property - Held that:- Un-paid and outstanding liabilities such as outstanding municipal taxes , transfer, registration and mutation charges and costs with respect to the said property ‘Roshan Villa’ in favour of the assessee and co-owners , with which the property was saddled with on the date of sale on 16-01-2009, and which the buyer agreed to assume and discharge the same as his liabilities after acquisition of property ‘Roshan Villa’ needs to be added to the sale consideration value of ₹ 25,00,000/- to arrive at full value of consideration to determine long term capital gains arising from the sale of the property. We would like to give an example to explain the same say for example , one property is worth ₹ 100 lacs and there is a loan outstanding of ₹ 40 lacs against the said property. The buyer agrees to pay ₹ 60 lacs to the seller for acquiring the said property and agrees to discharge loan against the said property directly after acquisition . Then, the full value of the consideration of the property will be ₹ 100 lacs being ₹ 60 lacs paid by the buyer to the seller and ₹ 40 lacs will be added being loan outstanding against the said property which the buyer agreed to discharge directly to the lender and not ₹ 60 lacs which the buyer agrees to pay to the seller as sale consideration as ₹ 40 lacs is an additional burden with which property was saddled with at the time of sale which the buyer has agreed to discharge on behalf of the seller and is infact part and parcel of full value of consideration as contemplated u/s 48 of the Act. Addition as such and in the manner made by the AO cannot be sustained under law and matter needs to be restored to the file of the AO for computing full value of consideration in the manner as outlined by us and then granting relief on account of deductions of indexed cost of acquisition of land and building/structure which in the instant case is not disputed by the AO as per assessee’s valuer report and such other deductions/reliefs which the assessee is legally entitled to under the provisions of the Act on merits such as Section 54EC of the Act as claimed by the assessee , which shall be granted by the AO on merits after examination of the relevant claims/relief’s. Thus, we set aside the orders of the learned CIT(A) and restore the issue back to the file of the AO for de-novo determination of the issue on merits in the manner as outlined by us as above. Needless to say proper and adequate opportunity of being heard shall be provided to the assessee in accordance with principles of natural justice in accordance with law. The assessee shall be allowed to produce relevant evidences , material and explanation in support of his contentions in his defense which shall be admitted by the AO and adjudicated on merits. This disposes of all the grounds raised by the assessee on solitary issue of computation of long term capital gains on sale of inherited property ‘Roshan Villa’. - Decided in favour of assessee for statistical purposes.
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2016 (7) TMI 1002
Carry forward of business loss - Held that:- The grievance raised is misplaced inasmuch as the claim of set off of business loss is for the business losses which pertain to assessment years of more than 8 years.Since, the assessee is not entitled to carry forward any loss for more than 8 assessment years and since the ld. counsel has conceded ground is accordingly dismissed.- Decided against assessee. Denial of set off of unabsorbed depreciation - Held that:- As relying on General Motors India (P.) Ltd. [2012 (8) TMI 714 - GUJARAT HIGH COURT ] we direct the A.O to allow set off/carry forward of unabsorbed depreciation as claimed by the assessee. - Decided in favour of assessee. Disallowance of interest payment - Held that:- In our considered opinion, if the A.O. is of the opinion that any claim of expenditure is excessive then it is incumbent upon him to bring on record the comparable cases. The only reason given by the A.O. is that the normal rate of bank interest is 12.50% but the A.O. has not realized is that the public make deposits in Companies to get more interest than from the bank. If the companies are paying the same rate of interest as the bank are paying then the public would not see any benefit in making deposits with the Company and they will go for bank interest. Further, by no stretch of imagination rate of interest of 15% can be considered as excessive. We, accordingly, set aside the findings of the ld. CIT(A) and direct the A.O. to delete the addition of ₹ 3,00,544/-.- Decided in favour of assessee.
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2016 (7) TMI 1001
Depreciation claim on leasehold property disallowed - Held that:- Right of enjoyment to immovable property under a lease is immovable property within the meaning given in sec.103 of the Transfer of Property Act. Under sec.105 of the Transfer of Property Act, a lease creates a right or an interest in the enjoyment of the land property.Having referred to the above legal position, we hold that by virtue of lease only an interest in land is created which does not qualify for allowance e of depreciation. Considering the alternative claim of the assessee-company that the cost incurred on development of commercial space given to STPI should be allowed as a revenue expenditure, as mentioned above, the expenditure is incurred for acquiring interest in the land which is capital in nature. Therefore, the question of allowing it as revenue expenditure does not arise at all. Hence, this ground of appeal filed by the assesseecompany is dismissed. Disallowance made under the provisions of sec.14A - Held that:- AO, taking note of the negative balance in the bank, after making investment in mutual funds, inferred that borrowed funds were utilized. However, it is settled proposition of law that where common pool of funds were utilized for making investment should be inferred that investments are out of own funds. The AO has not rendered any finding whether the claim of the assessee is incorrect. When the assessee-company had not incurred any expenditure, the question of disallowance u/s 14A does not arise as per law laid down by the Hon’ble Karnataka High Court in the case of Canara Bank vs. Asst.CIT (2014 (6) TMI 929 - KARNATAKA HIGH COURT ). Therefore, this ground of appeal is remitted back to the file of the AO for fresh adjudication in accordance with law.
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2016 (7) TMI 1000
Benefit u/s.54F denied - AO denied the exemption u/s.54F on the reason that the return filed within the extended time limit available of filing of return of income u/s.139(4) cannot be considered - Held that:- we are inclined to remit the issue to the file of AO to examine the fulfillment of the conditions u/s.54F of the Act through intermediary period that is from the date of sale of capital asset to the date of actual investment in residential house. Accordingly, the issue is remitted to the file of AO for fresh consideration after giving adequate opportunity of hearing to the assessee. - Decided partly in favour of assessee for statistical purposes.
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2016 (7) TMI 999
Addition on account of provision of liability regarding exchange rate fluctuation - Held that:- An identical issue has been decided in the case of CIT Vs Woodward Governor India P. Ltd. (2009 (4) TMI 4 - SUPREME COURT ) wherein held as “Loss” suffered by the assessee on account of fluctuation in the rate of foreign exchange as on the date of the balance-sheet is an item of expenditure under section 37(1) of the Income-tax Act, 1961. - Decided in favour of assessee Addition on account of advance written off - Held that:- In the present case, it appears that an amount of ₹ 8,25,000/- was fraudulently withdrawn from the assessee’s bank account with Citi Bank by forging the signature of the assessee who had filed a suit against the bank, but no progress had yet been made. Therefore, it is clear that the incidental events happened in the regular course of business of the assessee, so it was an allowable expenditure u/s 37 of the Act and the ld. CIT(A) rightly held so - Decided in favour of assessee Percentage of adjustment to international transaction - Held that:- In the present case, it is an admitted fact that the ld. CIT(A) directed the AO to make the proportionate adjustment of the expenses to the extent it is attributable to the international transactions. No valid ground to interfere with the findings of the ld. CIT(A). Disallowance on account of excess claim of depreciation on computer peripherals - Held that:- Computer accessories and peripherals such as printers, scanners and server form an integral part of the computer system. In fact, the computer accessories and peripherals cannot be used without the computer. Consequently, as they are part of the computer system, they are entitled to depreciation at the higher rate of 60 per cent. See CIT Vs BSES Yamuna Powers Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT ] - Decided in favour of assessee Addition on account unascertained liability - Held that:- In the present case, it appears that the ld. CIT(A) allowed the claim of the expenses on this basis that the assessee was following this accounting policy, consistently and claiming the expenses by creating the provisions for such expenses. In our opinion, this issue requires verification at the level of the AO, he should verify as to whether the expenses pertained to this year or not and that the claim of the assessee was allowed in earlier and subsequent year on similar basis. Accordingly, this issue is set aside to the file of the AO for verification.
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2016 (7) TMI 998
Addition u/s 68 - genuineness of transaction and the creditworthiness and identity of the subscribers not proved - information received from the Investigation Wing of the department - Held that:- In the present case, the AO while making the impugned addition had relied upon the information received from the Investigation Wing of the department that the aforesaid two companies were controlled by one Sh. Tarun Goyal who disclosed in his statement that the said companies were engaged in providing accommodation entries, however, the assessee was not confronted with that statement, if any. It was also claimed by the assessee that on inspection of the assessment record no such statement was found. In our opinion, the said observation of the AO is not sufficient to presume that the said companies were engaged in providing the accommodation entries. It is well settled that the companies are juristic person and separate from the individual, therefore, on this basis that even if Sh. Tarun Goyal was engaged in providing accommodation entry, it was not sufficient to hold that M/s Bhavani Portfolio Pvt. Ltd. and M/s Thar Steels Pvt. Ltd. were also engaged in providing accommodation entries, particularly when no evidence was brought on record in support of the said presumption. In the present case, as we have already noted that the assessee discharged the onus cast upon it to prove the identity of the share applicants, their creditworthiness and genuineness of the transaction. Therefore, the addition made by the AO u/s 68 of the Act was rightly deleted by the ld. CIT(A). In that view of the matter we do not see any merit in this appeal of the department. - Decided in favour of assessee
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Customs
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2016 (7) TMI 1021
Seeking interest on delayed refund amount within a time bound period - Held that:- Ordinarily, the parties like the petitioner should not be required to make application for refund. Further, there is no lis or adjudication for the duty amount is not payable. The duty is not payable but has been paid already and, then, that sum is required to be refunded, provided all the conditions in that behalf are satisfied. Once there is a refund order, as has been made in the present case in favour of the petitioner and even the implementation thereof is delayed, then, that must carry interest and that is why Section 27A [subsection (1)] provides for payment of interest. It is now that sum which is directed to be payable. The interest in terms of Section 27A(1) of the Customs Act, 1962 shall be released and the sum paid as expeditiously as possible and within a period of twelve weeks from the date of receipt of a copy of this order. The writ petition is accordingly allowed.
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2016 (7) TMI 1020
Import of baggage without declaring goods - Levy of penalty - carrying contraband or dutiable goods - Held that:- The applicant was neither eligible to import gold nor did he declare the impugned goods that were in a substantial/commercial quantity. Instead he had carefully concealed them on his person to smuggle it into the country and to hoodwink the authorities, Hence, the same cannot be treated as bonafide baggage in terms of Section 79 of the Act ibid. The said cold is imported in violation of provisions of Section 77, 79, of Customs Act, 1962 para 2.20 of Exim Policy of 2009-14 and provisions of Section 3 (3) and 11(1) of Foreign Trade (Development & Regulation) Act, 1992. The same would thus appropriately constitute ‘prohibited goods" liable to confiscation under Section 111 (d), (j), (l) and (m) of the Customs Act, 1962. Therefore, Government finds no reason to interfere with the order of the lower authority ordering confiscation of the impugned gold under Section 111 (d), (j), (I) and (m) of the Act ibid. Government further finds that in view of the facts and circumstances of the case redemption fine and penalty under relevant provisions of the Act ibid has been rightly imposed on the applicant for the offense committed. The quantum of penalty is reasonable and commensurate to the nature of the offense where the gold has been sought to be smuggled by deliberate concealment. Therefore, the plea of the applicant that redemption fine and penalty imposed is too harsh is not tenable. The Revision application is rejected being devoid of merits. - Decided against the applicant.
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Service Tax
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2016 (7) TMI 1036
Levy of penalty - Valuation - service tax liability on TDS amount and reimbursements received towards LPG gas and Milk from the recipient of services - Outdoor Catering Service - reimbursement of expenditure - Held that:- the disputed tax and interest have already been paid (excess tax paid as claimed by the Appellant), the issue to be addressed in this appeal is the imposition of penalty under Section 76, Section 78 of the Finance Act, 1994 and adjustment of excess tax paid by the Appellant. - Held that:- Appellant's case deserves a waiver of penalty under Section 78 of the Finance Act, 1994 in view of Section 80 of the Finance Act, 1994 as it existed during the period of dispute. As regards the consequential relief on excess payment of tax, we find that no substantiation in the form of documentary evidence has been produced and the claim is being made based on assertions . Accordingly, we are unable to accede to the prayer. Accordingly, appeal is allowed in so far as they relate to imposition of penalties under Section 76 and Section 78 of the Finance Act, 1994. - Decided partly in favor of assessee.
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2016 (7) TMI 1035
Cenvat Credit - Input services - certain documents called "debit notes" issued by the service provider - Held that:- All the details of the service provided is recorded in the debit notes. Since the documents on the basis of which credit has been availed, specify and contain essential details which are required as per the proviso to Rule 9 (2) of Cenvat Credit Rules and there is no observation that service has not been received, there is no occasion to doubt about the eligibility of the documents. Decided in favor of assessee.
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2016 (7) TMI 1034
Cenvat credit - input services where service tax was paid under reverse charge - Goods Transport Services (GTA) and Business Auxiliary Services (BAS) - service tax liabilities on these two services have been discharged by them by debiting the cenvat credit account and not by cash - Another dispute relating is to credit taken on the basis of two invoices on “input services” and “capital goods” which were also denied on the ground that the invoices are not in the appellants name but in the name of their sister unit. - Held that:- no justification for denial of such credits on the ground that the service tax has been paid by using the debit account as unjustified. Accordingly, the impugned order is set aside with reference to such denial. Regarding the credit taken on invoices not in the name of appellant, the admitted facts are that the immediately on being pointed out by the Audit, the appellants reversed the credit on both the invoices and reported compliance. They have pleaded bonafide mistake and also on the fact that the sister unit did not avail any credit on the said invoices. - no justification for imposing equal penalty with reference to such reversals. Decided in favor of assessee.
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2016 (7) TMI 1033
Rectification of mistake - Held that:- As is evident, the CESTAT order dated 13.8.2015 did set aside the impugned order-in-original No. 172-174/GB/2013 dated 29.11.2013 (as a consequence of which the demand, interest and penalties also got set aside) and passed ‘further’ order (for de novo adjudication only in relation to service tax demand, interest and penalty relating to “foreign exchange”). Thus even the order sheet noting dated 13.8.2015 reproduced earlier is not in disharmony with the CESTAT order dated 13.8.2015. - the appellant has not pointed out any error apparent in the CESTAT order dated 13.8.2015 per se. - ROM applications dismissed.
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2016 (7) TMI 1032
Scientific and Technical Consultancy Charges - assistance provided to Joint Venture partner including procurement/ purchase of moulds, machineries, drawings, designs etc. - Held that:- the service rendered by the respondent in this case does not fall within the purview of taxable service of Scientific and Technical Consultancy.” - Demand set aside - Decided in favor of assesse.
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2016 (7) TMI 1031
Waiver of pre-deposit - Commercial or Industrial Construction Service (CICS) - Manpower Recruitment or Supply Agency Service - Maintenance and power backup expenses recovered from the clients in the form of fixed charges, operator charges, fuel consumption /running expenses. - Admissibility of Cenvat Credit - Held that:- Having regarding to the foregoing discussion and keeping in mind that the appellant has also raised the issue of time bar, though that is contested by ld. Departmental Representative and elaborate discussion thereon can be done only at the time of final hearing, we are of the view that e pre-deposit of ₹ 50 lakhs would meet the requirement of Section 35F of Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. - stay granted partly.
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Central Excise
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2016 (7) TMI 1030
Claim of exemption - Area based exemption - the original authority rejected ₹ 72,963/- on the ground that the product Acid Oil was not manufactured before 31.12.2005, hence, not eligible to the benefit of said exemption Notification. - Notification No.39/2001-CE dated 31.07.2001 - Held that:- a categorical submission has been advanced by the appellant before the Ld. Commissioner (Appeals), and evidences of installation of plant and machinery prior to 31.12.2005, capable to manufacture “Acid Oil” were produced and also before us a categorical submission has been advanced by the Ld. Advocate for the appellant that the Acid Oil had been manufactured, without addition of any plant and machinery to the existing line of manufacture of goods, after the cut off date 31.12.2005. The observation of the Ld. Commissioner(Appeals), on the other hand rests on conjectures and surmises. In these circumstances, we are of the opinion that the appellant had since complied with all the conditions of the notification in respect of the product Acid Oil, hence, eligible to the benefit of Notification No. 39/2001-CE dated 31.07.2001 - Decided in favor of assessee.
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2016 (7) TMI 1029
Clandestine removal of goods - shortage of goods - Central Excise conducted stock verification of raw materials and finished goods - Held that:- apart from the allegation of shortage based on estimation, no other corroborative evidence is presented to show that possible clandestine manufacture, clearance, transport or buyers of such goods. - Demand set aside - Decided in favor of assessee.
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2016 (7) TMI 1028
CENVAT credit - transfer of CENVAT credit from lessor to the lessee - Rule 10 of CENVAT Credit Rules, 2004 - the appellant is rightly entitled to the CENVAT credit amounting to ₹ 49,08,230/- which was originally permitted to be transferred by the Assistant Commissioner, Yeshwathpur, Bangalore by his letter dated 23.11.2007 and there is no merit in the orders passed by the lower Revenue authorities. The appeal is allowed with consequential benefit, if any, to the appellant. - Decided in favor of assessee.
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2016 (7) TMI 1027
Availing cenvat credit after 6 months from the date of receipt - Held that:- it does not appeal to common sense how the genuine credit available should be denied when appellant shows that every claim was within six months of receipt of subsequent invoice and scheme of modvat is that credit is allowable when the goods are received in the factory. - credit cannot be denied.
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2016 (7) TMI 1026
Cenvat Credit on Furnace Oil used as fuel and other inputs used in the generation of electricity, which in turn utilized in the manufacture of dutiable goods as well as exempted/non-excisable goods. - Held that:- the Department allegation regarding the appellant has not maintained separate accounts for such inputs and hence the appellant has suppressed the facts, has no legal force, as the appellant has not required to maintain separate accounts for such inputs because the same is excluded by the legal provisions during the relevant period,. Therefore, order for imposition of penalty under Section 11AC of the Central Excise Act, 1944 and invocation of extended period under provision to 11A of the Central Excise Act 1944 is also liable for set aside.
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2016 (7) TMI 1025
Claim of exemption - manufacture and clearance of M.S. Pipes (size 200 mm diameter) to various sites of the department of PHED for drinking water in various districts of Rajasthan on the basis of certificate issued by the Collector and the District Magistrate of the other respective districts. - Notification No. 6/2002-CE - The dispute arose by the Revenue taking the view that the goods covered by the certificates were meant for use in water wells as Casing Pipe to be used for the purpose of protecting wells from collapsing. Held that:- The wording of the notification is to be interpreted in such a way as not to frustrate the purpose of the notification. The CBEC Circular has clarified that exemption will be available on pipes required for obtaining untreated water from its source to the plant. This clarification fairly covers the issue on hand and the benefit cannot be denied. To take a view that the benefit can be extended only to those pipes which physically carry water and deny it to those which are used as Casing pipes (which are also needed for delivery of water) would defeat very purpose of the Exemption Notification meant for giving the benefit to water treatment plants. - Benefit of exemption allowed - Decided against the revenue.
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2016 (7) TMI 1024
Cenvat credit availed on inputs and inputs contained in final products lost due to fire - correctness of denial of credit which are attributable to the credit on inputs which are already used in the manufacture of final products and such final products is lost in fire - Levy of penalty - Held that:- when the final product is lost in fire accident subsequently the question of reversal can be decided only in terms of Rule 3 (5C) of Cenvat Credit Rules, 2004. Since, in the present case there is no order of remission and as such I find that reversal of credit on such inputs contained in final product is pre-mature and unjustified. The appellants are not contesting the reversal of credit on the inputs lost in fire accident. Regarding the penalty imposed, there is no finding by the lower Authorities justifying the imposition of equal amount of penalty under Rule 15 (2) of Cenvat Credit Rules, 2004. Admittedly the credit has been rightly taken by the assessee and there is no illegality in that. The intervening fire accident resulted in possible loss of credit for the appellant which in any case cannot be penalized by invoking Rule 15 (2) without any reason attributed. In view of the above discussion, the finding in the impugned order w.r.t. Cenvat credit on inputs contained in final products lost in fire accident as well as the whole of penalty imposed on the appellant is set aside. - Decided in favor of assessee.
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2016 (7) TMI 1023
Cenvat credit of service tax paid on GTA services for outward transport of finished goods from the factory to the buyer’s premises. - Held that:- the respondent have undertaken the transportation and the value of such transportation is apparently included for the purpose of discharging central excise duty on the finished goods. The freight was integral part of the value in the present case has been admitted by the Original Authority. Such being the case, it is not open to Revenue to rely on the decision of the Hon’ble Supreme Court as stated above to hold that the respondent are not eligible for cenvat credit on freight element though admittedly, such freight forms part of the assessable value. Such assertion will result in self-contradiction. - Credit cannot be denied - Decided against the revenue.
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2016 (7) TMI 1022
Refund - unjust enrichment - higher duty paid on lead acid batteries - issuance of credit notes - Held that:- The enrichment of the person, who has paid the duty and seeks refund would be unjust if he even while not suffering the burden of duty after having passed on the same to another obtains refund and retains such refund with him. There would be nothing unjust where the person who has paid duty and has not passed on that burden to another receives refund thereby reducing the burden which he was not required to bear but had bore. Refund was originally granted. Surprisingly, in the consequential de novo proceedings, the Joint Commissioner took the view that though HBL had not recovered the impugned amount from M/s. ITL, they have failed to prove that this amount have not been recovered from other customers and thus held that the case is hit by unjust enrichment. - the refund has been correctly sanctioned by the original authority - Decided in favor of assessee.
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CST, VAT & Sales Tax
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2016 (7) TMI 1019
Whether on the facts and in the circumstances of the case, Trade Tax Tribunal was legally justified in granting relief to the dealer in the absence of the statutory Form-C as well as the Tribunal was justified in deleting the amount of interest levied on the dealer? - Held that:- the finding of the Tribunal on the aforementioned aspects cannot be sustained. - Order of tribunal set aside - Decided in favor of Revenue.
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2016 (7) TMI 1018
Validity of revised order passed by the respondent for the financial years 1991-92 to 1994-95, under the provisions of the Tamil Nadu General Sales Tax Act. - Held that:- the issue pertains to refund of money paid by the petitioner to avail the benefit of Samadhan Scheme. Since the issue as to whether adjustment could be made or not, are all factual issues and those complicated factual issues cannot adjudicated in a Writ Petition. Therefore, considering the facts and circumstances of the case, this Court is of the view that the petitioner should be directed to file a Revision before the concerned Joint Commissioner of Commercial Taxes, challenging the impugned order, who would be in a position to consider all the disputed questions of fact and also the calculations which the petitioner has furnished.
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2016 (7) TMI 1017
Rate of VAT - The assessing authority merely holds that bio toilets do not come under the category of rail coaches. No reasons are assigned as to how the assessing authority has come to the conclusion that these bio toilets do not fall under the said category. The assessing authority exercises quasi-judicial powers, and is obligated to assign reasons for arriving at any decision. No order of assessment can be passed on the ipse dixit of the assessing authority. - Matter remanded back.
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