Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
July 26, 2018
Case Laws in this Newsletter:
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Highlights / Catch Notes
Income Tax
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Allowability of deduction u/s 35(2AB) - the application is complete in all respects and the assessee is otherwise eligible for grant of such approval, approval may take some time to come by. The claim for deduction cannot be defeated on the ground that such approval was granted in the year subsequent to the financial year in which the expenditure was incurred
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Protective addition made in the hands of the assessee - addition u/s 68 - the Revenue cannot take different stand in respect of these two assessee.
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Disallowance of Value Added Tax (VAT) written off - assessee has neither routed the impugned write off through its profit and loss account nor does it satisfy the basic tenet of bad debt write off claim u/s. 36(2) - assessee’s impugned claim is rather allowable as a business loss u/s 28 r.w.s 37
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Eligibility to exemption u/s 11 - charging fees from the students - denial of claim as activities of the society are in the nature of business activity - AO could not demonstrate by cogent evidence that the assessee society was carrying out activities which were commercial in nature - benefit of exemption allowed.
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Deemed dividend addition u/s. 2(22)(e) - both the parties are engaged in similar trade and activities and the above amount was given as advance against business transaction - no additions.
Indian Laws
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Cheque bounced - Authority to fill the date in an undated cheque - The fact that the petitioner had handed over an undated cheque, in the given facts and circumstances would ordinarily lead to presumption of grant of authority to the payee i.e. the complainant to fill in the date
Service Tax
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Levy of Service Tax - legal services / law firm - amounts paid to senior counsel for services rendered to third party clients in the form of representation in Courts etc. - Revenue could not have included the payments received as reimbursements, payments made by the assessee/petitioner or received through reimbursements towards Senior Counsel fee, in the value of services rendered by it.
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Club and Association Services - principles of mutuality - The Trust and the member of Vanprastha Ashram Scheme become two different legal entities. Any services of club and association being provided by the appellant to such members are therefore, taxable services under Section 65 (25a)
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Health Club & Fitness Center Service - services provided in relation to the obesity and overweight of the patients - from the treatment offered it does nowhere occurs that the same are physiotherapy services as the nature of services shown are for excessive weight or shoulder pain - benefit of exemption not allowed.
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Classification of services - BAS - neither in the show cause notice nor in the Order-in-Original or in the grounds of appeal, the department clarified as to which of the sub clauses (i) to (vi) is relevant. Unless this is specified, it cannot be examined whether the services provided by the respondent are incidental or auxiliary to that category.
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Reverse Charge Mechanism - it is essential that the department say what services were received by the appellant and how they were unclassifiable and how they were liable to be charged under reverse charge mechanism and compute their tax liability accordingly
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Consulting Engineer Service -SC dismissed the SLP of the assessee claiming the activity as works contract activity - in this case, CESTAT while confirming the demand, observed that, Documents placed depicts that appellant was supervisor to provide technical assistance for the purpose of erection and installation.
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Valuation - The reimbursement made by the principal to the C&F Agent on account of various expenses do not form part of amount chargeable to Service Tax
Central Excise
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Area based exemption - the conditions inserted in Notification No. 50/2003-CE are mandatory and cannot be held as mere procedural requirement - SC dismissed the appeal of the assessee against the decision of Tribunal.
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Valuation - turnkey projects - inclusion of value of the accessories in assessable value of transformers - value could not be included - demand set aside.
Case Laws:
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Income Tax
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2018 (7) TMI 1565
Penalty u/s 271D - breach of Section 269SS for the subject three assessment years - Held that:- We find that the impugned order of the Tribunal is a detailed speaking order. Wherever the party has made submissions and made out a reasonable cause, the Tribunal has exercised its discretion in setting aside the imposition of penalty or restoring it to the Assessing Officer for fresh consideration in the light of the facts pointed out by the appellant during the course of the hearing. Wherever no reasonable cause was pointed out, the impugned order of the Tribunal did not disturb the findings arrived at by the Assessing Officer and the CIT(A). Thus, this is not a case of non exercise of discretion under Section 273B of the Act as alleged by the appellant. From the reading of the impugned order of the Tribunal, we find that in respect of the loans on which penalty has been confirmed, the appellant assessee has not made out and / or submitted any reasonable cause for the Tribunal to exercise its discretion to set aside the penalty in such cases. The case laws of the Apex Court and coordinate bench of this Court relied upon by Mr. Jha on behalf of the appellant, is binding upon us and there can be no quarrel with the proposition set out therein. However, the same cannot be considered in vacuum. It necessarily has to be in the context of the facts arising in the case. In this case, we find that the appellant assessee has not made out any case for reasonable cause in respect of cases where the impugned order has not disturbed the finding of the lower authorities. Tribunal was right in upholding penalty imposed under Section 271D
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2018 (7) TMI 1564
Consolidating of appeals - validity of ITAT order - Held that:- The record nowhere discloses nor does the Revenue dispute that the ITAT did give any notice to the Petitioner/assessee before issuing the consolidation order. Apparently all these appeals preferred by the appellant were being listed and heard repeatedly by different Benches. Assessee’s counsel submits that the ground of adjournment was that the appeals would be consolidated. Given these circumstances, the Tribunal ought to have at least followed the proper procedure, laid down in Dr. Prannoy Roy (2018 (5) TMI 593 - DELHI HIGH COURT) and even enunciated by its previous order in Olympia Paper & Stationery Stores (1997 (3) TMI 157 - ITAT MADRAS-A). Firstly, it should have given adequate notice to the Appellant on the issue of consolidation and secondly, if the Revenue’s request is found feasible and reasonable, indicate brief reason as to why the consolidation was essential. The failure of the ITAT to confirm to salient features vitiates its order. In these circumstances, the impugned order dated 11th June 2018 and the subsequent order of 9th July 2018 consolidating all appeals are hereby quashed. In case the Revenue wishes to consolidate all these appeals, it shall move a proper comprehensive application before the ITAT, serving a copy in advance to the assessee
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2018 (7) TMI 1563
Payment made by the assessee towards non compete fees - Held that:- In the present case, the non-compete fee was paid to the Companies and/or its Directors / shareholders in consideration of noncompeting with the respondent for the period of one year. Thus, this payment does not get any enduring benefit to the respondent-assessee but the benefit is in the very short-term and thus allowable as revenue expenditure. The test applied is the length of benefit on account of payment of non-compete fee and if the benefit is for a short term such as one year in this case, it is Revenue in nature. The Revenue has not even attempted to point out why the above test is not correct. Disallowance of foreign exchange loss - Held that:- Issue stands concluded against the revenue and in favour of the respondent-assessee by the decision of the Supreme Court in the case of CIT vs. Woodward Governor India Pvt Ltd [2009 (4) TMI 4 - SUPREME COURT ] Disallowance of Vanda Loss - whether the said loss is speculative in nature as per section 73? - Held that:- We find that both the CIT(A) as well as Tribunal have come to a concurrent finding of fact that, the loss on account of Vanda incurred by the respondent-assessee is not on account of carrying out transactions on its own account, but is an incident of its business as share broker. Thus, the activity which has resulted in loss is only to ensure that it is not disqualified from carrying on activities as a share broker by the Stock Exchange. It needs no explanation that when a person is in the business of broking, situation would arise where the clients/principal for whom the broker is acting, may not fulfill the demand which the broker has to fulfill at its own cost, to maintain his credibility. It is this activity that results in loss. Therefore, it is an integral part of carrying on business as a stock broker. Appeal admitted on substantial question of law at (3) - Whether VSAT is a part of computer and eligible for depreciation @ 60% or @25% only?
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2018 (7) TMI 1562
Claim of deduction u/s 80M - Expenses notionally allocable to the earning of dividend income - Held that:- Only actual expenses incurred for earning dividend income ought to be taken into account while determining the deduction under Section 80M of the Act. Thus, there is no question of making allocation of expenditure on notional basis to earn dividend income, to determine the deduction of dividend under Section 80M of the Act. The contention on behalf of the Revenue that the Tribunal has rendered a finding of fact of ₹ 5 lakhs being incurred for earning dividend income, has not been challenged, is not correct. The very basis of allocating expenses on a notional basis to reduce the dividend, entitled to the benefit of Section 80M of the Act, is the subject matter of challenge before us. Therefore, even if the finding of fact viz. Notional expenditure has been incurred is not specifically challenged, the law is settled that it cannot be reduced from the dividend income for deduction under Section 80M of the Act. Expenses on account of stamp duty - Held that:- We find that the impugned order of the Tribunal itself records that the same has been disallowed by the Assessing Officer. In any case, this Court in General Insurance Corporation (2000 (9) TMI 12 - BOMBAY HIGH COURT) has held that expenses incurred on account of stamp duty for transfer of shares is not directly related to earning of dividend income. Therefore, it cannot be reduced from the dividend income earned while computing the deduction under Section 80M of the Act. - Revenue appeal dismissed.
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2018 (7) TMI 1561
Addition made u/s 68 - ITAT was of opinion that on the date of the survey the title to the property of the assessee was itself under serious doubt - Held that:- The entire issue is based on appreciation of evidence. The Tribunal having considered relevant aspects and having come to the conclusion that the Revenue has failed to bring on record sufficient evidence of cash amounts have been received by the assessee, no question of law arises.
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2018 (7) TMI 1559
Allowability of deduction under section 35(2AB) - Tribunal justification in restoring the matter back to the Assessing Officer - Held that:- No hesitation in allowing the assessee's claim for deduction under section 35(2AB) of the Act. Shorn of any controversy, documents on record would suggest that at any rate, the assessee had applied for approval of research and development facility to the prescribed authority on 22.12.2006 and such approval was granted on 22.10.2008. By the very nature of things, research and development is a hit and miss exercise. Much of the efforts, capital as well as human investment may go waste if the research is not successful. The legislature therefore, having granted special deduction for such expenditure, the same should be seen in light of the purpose for which it has been recognised. Research and development facility can be set up only after incurring substantial expenditure. The application for approval of such facility can be made only after setting up of the facility. Once an application is filed by the assessee to the prescribed authority, the assessee would have no control over when such application is processed and decided. Even if therefore, the application is complete in all respects and the assessee is otherwise eligible for grant of such approval, approval may take some time to come by. The claim for deduction cannot be defeated on the ground that such approval was granted in the year subsequent to the financial year in which the expenditure was incurred. No such indication was given by this Court in case of Claris Lifesciences Ltd.(2008 (8) TMI 579 - GUJARAT HIGH COURT), none appears from the judgment of the Delhi High Court in case of Maruti Suzuki India Ltd.(2017 (8) TMI 248 - DELHI HIGH COURT)- Decided in favour of the assessee
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2018 (7) TMI 1558
Reopening of assessment - validity of sanction provided under section 151 - borrowed satisfaction - Held that:- None of the alleged inaccuracies or the errors are demonstrated to be so fundamental as to vitiate the very proceeding for reassessment. No further discussion on this ground is needed. Coming to the question of lack of sanction as required under section 151 of the Act before issuance of notice of reopening, we have perused the original files which would show that the Assessing Officer having recorded the reasons for reopening, presented the same for approval of the Principal Commissioner in prescribed format on 29. 03. 2017. On 30. 03. 2017, the Joint Commissioner of Income Tax as an intermediatory officer, processing such reasons and opining whether it was a fit case for reopening of the assessment under section 147 of the Act, in his own handwriting put the remarks “ I am satisfied” that it was a fit case for reopening under section 147 of the Act. On 31. 03. 2017, the Principal Commissioner of Income Tax put his remarks that based on the reasons recorded by the Assessing Officer, he was satisfied that it was a fit case for reopening the assessment under section 147 of the Act. Thus, the sanction for reassessment was granted on 31. 03. 2017 i. e. the date on which such notice was issued. The contention with respect to the borrowed satisfaction and fishing inquiry overlap - Assessing Officer has not even called for any information or document from the assessee or any other person in relation to the assessee's proposed assessments. He has, by all accounts, merely contacted the Investigation Wing of the Income Tax department at Kolkata and based on the process of shortlisting, has called for information with respect to dealings of such shortlisted companies. If on the basis of the information so collected, no further information, is made available to the Assessing Officer which would enable him to form a belief that income chargeable to tax had escaped assessment, he would not be justified in issuing notice for reopening. Only in cases, where on the basis of such information he could bona fide form a belief that income chargeable to tax had escaped assessment, he could exercise powers for reassessment. Mere fact, that instead of such information being supplied to him by the Investigation Wing of the Income Tax Department at Kolkata he sought such information, would not be of any consequence. Appeal dismissed.
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2018 (7) TMI 1557
Entitled to deduction u/s 80P(2)(a)(i) - Held that:- We hold that the CIT(A) was justified in directing the A. O. to grant deduction u/s 80P(2)(a)(i) of the I. T. Act. THE CHIRAKKAL SERVICE CO-OPERATIVE BANK LTD. VERSUS THE COMMISSIONER OF INCOME TAX [2016 (4) TMI 826 - KERALA HIGH COURT] Denying the benefit of deduction u/s 80P(2)(a) as regards the trade income earned - Held that:- The specific case of the assessee was that the trade income that it had earned is on account of purchase of agricultural implements, seeds, livestock or other articles intended for agriculture for the purpose of supplying them to its members. Therefore, such income was entitled to deduction u/s 80P(2)(a)(iv) of the I. T. Act. Since the AO nor the CIT(A) had not given any specific reasons for denying the benefit of deduction u/s 80P(2) of the I. T. Act as regards the claim of the assessee on the trade income, we deem it appropriate to remand the matter to the A. O. for fresh consideration. The assessee shall prove with necessary evidence the trade income it had earned was entitled to deduction u/s 80P(2)(a)
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2018 (7) TMI 1556
Revision u/s 263 - period of limitation - exemption claimed u/s 10B / 10A as disallowed and also interest expenditure for the reason that there was diversion of funds not for the purpose of business - Held that:- When Commissioner invokes his revisionary jurisdiction u/s 263 on issues which are not considered in the reassessment order, the time limit for invoking the revisionary jurisdiction will run from the date of the original assessment order and not from the reassessment order. See M/S. INDIRA INDUSTRIES VERSUS PRINCIPAL COMMISSIONER OF INCOME TAX, CHENNAI [2018 (6) TMI 840 - MADRAS HIGH COURT] In the instant case, since the subject matter of revisionary proceedings u/s 263 of the I.T.Act are not covered under the reassessment order dated 17.03.2015, the reassessment order cannot be considered for the time limit purpose u/s 263. Therefore, if the assessment order u/s 143(3) of the I.T.Act dated 26.04.2013 is reckoned, the Commissioner’s order dated 27.03.2017 passed u/s 263 was time barred and same cannot be sustained. - Decided in favour of assessee.
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2018 (7) TMI 1555
Protective addition made in the hands of the assessee - addition u/s 68 - assessee failed to offer explanation with documentary evidence to the satisfaction of the Assessing Officer - Held that:- AO as well as the CIT(A) was not correct in making the additions on protective/substantive basis. Nothing has been found in search of Rock Land on the basis of which it can be said that Rock Land has paid anything out of books to these companies, which had arranged share application money to the group. As regards the issue of difference in the amount received and transferred to Rock Land Hospital group, in the case of Sukumar the difference is ₹ 3,50,080/- and in the case of Sanskriti, the difference is ₹ 2,50,638/-. From the records it can be seen that these amounts were incurred by assessee on maintaining the corporate entity of the Companies. The Assessing Officer has not brought on record to establish that these are not incurred for the purpose of business. It is pertinent to note that while passing Assessment orders in cases of Purnendu Traders and Ashwin Pharmaceuticals, there is no addition of this nature made while framing assessment under section 143(3) of the Act. Thus, the Revenue cannot take different stand in respect of these two assessee. Therefore, CIT(A) as well as Assessing Officer was not correct in making substantive/protective additions in the hands of the assessees’ herein. Since the Ld. AR/assessee admitted that there is difference in the amount received and transferred to Rock Land Hospital group of ₹ 3,50,080/- in case of Sukumar and ₹ 2,50,638 in case of Sanskriti, the same needs to be verified by the Assessing Officer. Therefore, we direct the Assessing Officer to verify this difference as per the findings given hereinabove.
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2018 (7) TMI 1554
Depreciation on UPS and computer peripherals etc. @ 60% - Held that:- Since the CIT(A) in the present appeal while granting higher rate of depreciation at the rate of 60% on computer accessories and UPS has followed the decision in the case of BSES Yamuna Powers Ltd. (2010 (8) TMI 58 - DELHI HIGH COURT), therefore, in absence of any contrary material brought to our notice, the order of the ld. CIT(A) on this issue is upheld and the ground raised by the Revenue is dismissed. Disallowance u/s 14A - CIT-A deleted addition holding that no expenses could be attributed for earning dividend income in the current year - Held that:- it cannot be said that no administrative or supervisory effort has been undertaken - some expenditure must be attributed towards earning of the dividend income. However, the disallowance at the rate of 10% of the dividend income by the Assessing Officer appears to be on the higher side - the disallowance of 5% of the dividend income towards administrative expenses will be justified under the facts of the case. We, therefore, restrict the disallowance to 5% of the dividend income. - Decided partly in favour of revenue Deduction u/s 80JJA - assessee not only failed to make such claim of deduction in the return of income but also failed to substantiate the same with documentary evidence in assessment proceedings - Held that:- We find the assessee had not filed the requisite details before the Assessing Officer during the course of assessment proceedings which has been clearly brought on record by the Assessing Officer in the body of the assessment order. We find although the ld. CIT(A) has examined certain details filed before him, however, he has neither called the Assessing Officer during the hearing of the appeal nor called for a remand report from the Assessing Officer. Thus, in effect the Assessing Officer was not given any opportunity of being heard before the appeal was decided in favour of the assessee. Under these circumstances, we find merit in the argument of the ld. DR that the matter should be restored to the file of the Assessing Officer with a direction to examine the details Not allowing the claim of the appellant for the higher depreciation on energy saving devices containing voltage stabilizer & UPS etc - Held that:- CIT(A) rejected the claim of the assessee on the ground that the main output achieved through the voltage stabilizer and UPS is uninterrupted supply of electricity that requires maintaining optimum voltage for allowing the machinery to function at the optimum level throughout and the objective is not to save energy but to ensure regular supply of electricity. We do not find any infirmity in the order of the CIT(A) treating the UPS and voltage stabilizer as part of the electric installation. We, therefore, uphold the same and the ground raised by the assessee in its Cross Objection is dismissed.
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2018 (7) TMI 1553
Revision u/s 263 - assessment order passed by the A.O under Sec.144 r.w.s. 263 was not served on the assessee company - Held that:- Even during the course of the hearing of the appeal before us the ld. D.R had failed to place on record any such material which could conclusively prove to the hilt that the assessment order passed by the A.O under Sec. 144 r.w.s. 263, dated 30.10.2006 was validly served upon the assessee. We are of a strong conviction that in the backdrop of the aforesaid facts it emerges that the assessment order passed by the A.O under Sec.144 r.w.s. 263 was not served on the assessee company. Rather, it was only after the new tax consultant of the assessee company was made aware of the outstanding tax liability, that at his request a copy of the assessment order was made available to him. It can safely be concluded that as the assessment order was made available to the assessee only as on 20.02.2013 (as deposed by the director in her affidavit), thus the appeal filed by the assessee with the CIT(A) on 06.03.2013 was well within the stipulated time and did not involve any delay. Before parting, we may herein observe that as observed by us hereinabove, no material had been placed on record by the ld. D.R which could have persuaded us to conclude that the order passed by the A.O under Sec. 144 r.w.s. 263, dated 30.10.2006 was earlier validly served on the assessee. Restore the matter to the file of the CIT(A) with a direction to readjudicate the issue on merits. - Appeal of the assessee is allowed for statistical purposes.
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2018 (7) TMI 1552
Disallowance of Value Added Tax (VAT) written off - assessee has neither routed the impugned write off through its profit and loss account nor does it satisfy the basic tenet of bad debt write off claim u/s. 36(2) - Held that:- There is further no issue between the parties about the fact that assessee has actually written off the sum in question of ₹2,12,100/-. Coming to CIT(A) former reason that the assessee had not routed the said sum for its profit and loss account, it is not in dispute that the instant taxpayer has followed the relevant accounting treatment to be given to the VAT item(s). No substance in CIT(A)’s former reason as assessee has to mandatorily comply with the relevant accounting principle regarding VAT in question. Coming to the latter issue of having not included said VAT amount as income, we are of the view that assessee’s impugned write off is very much incidental to carrying out of its business activity. We thus follow hon'ble apex court’s decision in (1965) CIT vs. Nanital Bank Ltd. [1964 (9) TMI 11 - SUPREME COURT] to conclude that assessee’s impugned claim is rather allowable as a business loss u/s 28 r.w.s 37 - We accordingly delete the impugned disallowance. Disallowance of earnest money deposit as no longer recoverable - Held that:- DR fails to dispute the basic fact that the assessee has actually written off the impugned in question in respect of its deposits for participating tenders processes in different organizations recoverable. The CIT(A) has also found “perceptible evidence” in assessee’s favour. His only view that it is not clear as to whether the said amount is in capital or revenue account. We find no merit in such reasoning. The fact remains that the assessee has made the impugned deposits so as to carry out its routine business activity of taking part in tender process. We therefore conclude the same to be revenue expenditure allowable in the nature of business loss u/s 28 r.w.s 37 of the Act since incidental to its core business activity of tenders. The assessee succeeds in its second substantive ground as well. TDS u/s 194C - TDS liability - Held that:- Both the lower authorities are of the view that the assessee ought to have deducted TDS as the impugned expenditure pertaining to supply of materials. We quote section 194C Explanation (iv)(e) of the Act in this backdrop to conclude that there is no specific finding in lower authorities’ orders under challenge that the assessee had, in fact, supplied the necessary material to its payees for manufacture or supply purposes. We therefore conclude that the CIT(A) has erred in law as well as on facts in confirming the impugned disallowance of outright material purchase. Repair expenditure claim on building - revenue or capital expenditure - Held that:- We afford sufficient opportunities to the Revenue to refer to the case record for the purpose of pin-pointing any capital expenditure element in assessee’s claim i.e. creation of altogether a new asset or any enduring advantage etc. There is no such rebuttal coming from the case file. The Revenue’s latter argument raising ownership issue of the repaired premises also has no force as there is no such pre-condition in the Act that only self-owned asset or premises of the concerned assessee can be repaired for the purpose raising the consequential claim as revenue expenditure. Employees contribution PF/ESI u/s. 36(1)(va) on account of late payment - Held that:- The assessee had paid the sum in question of employees’ contribution to PF and ESI amounting to ₹44,655/- before the date of filing its return u/s. 139(1) of the Act. Hon'ble jurisdictional high court’s decision in CIT vs. M/s Vijay Shree Ltd. [2011 (9) TMI 30 - CALCUTTA HIGH COURT] has already decided the very issue in assessee’s favour
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2018 (7) TMI 1551
Addition u/s 14A r.w.r. 8D - Held that:- Assessee has not derived any exempt income in the impugned assessment year. Hon’ble jurisdictional high court’s decision in CIT vs M/s Ashika Global Securities Ltd. [2018 (7) TMI 1425 - CALCUTTA HIGH COURT] upholds tribunal’s similar order deleting identical disallowance in absence of exempt income. Disallowance u/s 80IB - Held that:- There is no dispute that the assessee’s concerned allotments of the residential units took place upto 06.08.2008 only whereas the statutory amendment in the Act i.e. section 80IB(10) (e) and (f) came into operation from 01.04.2010 with the said amendment to be having prospective effect only. Assessee quotes hon’ble apex court’s decision in CIT vs M/s Sarkar Builders [2015 (5) TMI 555 - SUPREME COURT] settling the law about the above statutory amendment to be prospective effect. Learned Departmental Representative fails to rebut this settled legal position. We therefore uphold the CIT(A)’s findings in deleting the impugned 80IB deduction disallowance. This Revenue’s instant second substantive ground is declined Disallowing assessee’s late payment pertaining to the employees contribution to PF - Held that:- We find herein as well that the hon’ble jurisdictional high court’s decision in Vijayshree Ltd. [2011 (9) TMI 30 - CALCUTTA HIGH COURT] has settled the law holding that such payment before the due date of filing return u/s 139(1) as allowable. We accordingly reject Revenue’s instant last and substantive ground as well.
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2018 (7) TMI 1550
Deduction u/s 54EC - Held that:- We notice that the assessee has sold the property on 28/03/2013 and made 1st investment on 25/03/2013 and second investment on 12/04/2013. The assessee has to make investment within 6 months from the date of sale i.e. before 28/09/2013. In this case, the limitation period of 6 months falls in 2 financial years. Since the provision allows to invest ₹ 50 lakhs during any financial year. Assessee intends to take the advantage of the above proviso u/s 54EC. This kind of transactions are made eligible by the judicial precedents in the case of Shri Upendra C Parekh (2017 (9) TMI 377 - ITAT MUMBAI). Further, we notice that the legislature has notices that this proviso was applied as tax planning to take additional deduction under this section 54EC. Therefore, they introduced the 2nd proviso to this section with effect from 01/04/2015 (AY 2016-17) prospectively. Since the present appeal relates to AY 2013-14, the amended provision will not apply to the present case as decided in the case of CIT Vs. C. Jainchander (2014 (11) TMI 54 - MADRAS HIGH COURT). Therefore, the grounds raised by the revenue are dismissed.
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2018 (7) TMI 1549
Transfer pricing addition - comparable selection criteria - functional similarity - Held that:- The assessee is a captive service provider to its Associated Enterprises only thus companies functionally dissimilar with that of assessee need to be deselected from final list.
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2018 (7) TMI 1548
Eligibility to exemption u/s 11 - charging fees from the students - denial of claim as activities of the society are in the nature of business activity - assessee is a society is primarily an educational institution with the aims and objects relating to education - Held that:- AO could not demonstrate by cogent evidence that the assessee society was carrying out activities which were commercial in nature and also after duly considering the fact that the assessee has been continuously enjoying the benefit of exemption u/s 11 of the Act from assessment year 2005-06 to assessment year 2014-15 barring the present year under appeal, we have no hesitation in holding that the CIT (A) has rightly adjudicated the issue in favour of the assessee. Accordingly, we dismiss the grounds raised by the department. - decided against revenue
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2018 (7) TMI 1547
Capital gain computation - Held that:- Oikos Apartments Pvt. Limited (OAPL) is the absolute owner of lands bearing S.No.68/2A,71/1 and 70/1 totally measuring 5 acres and 24 guntas located at Allalasandra village, Yelahanka, (the aforesaid land was originally granted to the father of one Krupa Shankar, who on becoming the owner of the lands on the death of his father, became partner in the firm and brought the land into the hotch pot of the partner firm) having acquired it on dissolution of a partnership in which the OAPL was a partner. OAPL was incorporated on 10.03.1995. The land is recorded in the books of account at ₹ 39,31,635/-. Capital gains therefore, has been computed based on the above cost and also the year of purchase as claimed by the appellant. The working of the capital gain is an under - The cost of acquisition to be taken for 30 feet width and 66 feet length proportionately and after allowing indexed cost on such piece of land and taking the entire amount received of ₹ 3.5 crores as consideration and compute the LTCGs in the A.Y 2012-13. AO is directed to consider the above amount and collect the taxes on the same. In view of the above, the appellant’s appeal is dismissed. As the entire consideration received has been brought to tax in the A.Y 2012-13 under the head LTCGs, the appeal filed for A.Y. 2014-15 is treated as allowed in respect of the grounds raised on the taxation of the balance consideration received in lieu of granting of perpetual easementary right of way and license to ingress and egress land measuring 30 feet wide for reaching the licensee landlocked property by entering into an agreement with M/s. Skyline Construction & Housing Pvt. Ltd.
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2018 (7) TMI 1546
TPA - ALP determination - mark up determined by the TPO - Held that:- TPO has considered the mark up of MD Overseas Ltd. as comparable and PLI was worked out at (-)1.14%. Since non AE jewellery segment margin was computed by the assessee at 6.36%, the assessee had to get the non AE jewellery segment margin at 6.36%. Hence by balancing the figure by adding (-)1.14% of the above, the Assessing Officer got the adjusted margin of assessee’s non AE jewellery segment at 7.5% and made the addition on that basis. In our opinion, it is not appropriate to balance in such a way without making proper TP study on the issue. Accordingly, we remit this issue to the file of the Assessing Officer to refer the matter afresh to the TPO for further TP study and decide accordingly. This ground of appeal is partly allowed for statistical purposes. Allowable busniss expenditure - renovation of leasehold building - Held that:- Expenditure incurred by the assessee on renovation of leasehold building is revenue expenditure and not a capital expenditure, though it was of enduring benefit or advantage unless at the end of the term of lease, the items on which expenditure was spent could be retrieved by the assessee.
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2018 (7) TMI 1545
Deemed dividend addition u/s. 2(22)(e) - Held that:- The claim of the assessee is that the transaction entered into by the two Companies are the business transactions. It is stated that both the parties are engaged in similar trade and activities and the above amount was given as advance against business transaction. The above facts were also confirmed by the Audited Accounts by the parties and M/s Northern Strips Pvt. Ltd. is also providing goods transport services to M/s Super Plastic Coats Ltd. AO did not controvert the above submissions of the assessee by making the further enquiry. He has merely rejected the above claim of the assessee without further adducing any evidence. The CBDT in its Circular No. 19 of 2017 has clarified that trade and commercial transactions are not covered in the definition of loans and advances on which provision of Section 2(22)(e) of the Act can be applied. Following in the case of CIT vs. Pravin Bhimsi Chheda (2011 (5) TMI 857 - ITAT MUMBAI) and in view of the CBDT’s Circular (Supra), we are of the view that Ld. CIT(A) has dealt with the issue correctly - Decided against revenue
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2018 (7) TMI 1544
Addition on account of payments in cash in violation of section 40A(3) - Held that:- The disallowance stands upheld by the ld. CIT(A), again, on the aspect of serviceability of the banks at the places where the expenditure stands paid. The said finding remains unrebutted. As, however, we have remitted the matter back to the file of the ld. CIT(A) for AY 2007-08, it is only considered proper that, like-wise, it be done for this year so as to ensure consistency of decision at his end; the facts being largely the same. We decide accordingly. Disallowance in respect of provision for gratuity - Held that:- The disallowance for both the years as well as its confirmation, is on the basis of section 40A(7) which bars deduction in respect of provision for gratuity expenditure. The assessee, though admitting the legal position, claims, albeit without any evidence, that the liability in respect of the impugned gratuity had, in fact, crystallized as at the year-end in-as-much as the relevant employee/s had superannuated during the relevant year/s. The assessee’s case, even as confirmed by the ld. AR during hearing, continues to be the same, so that its claim remains wholly unsubstantiated before us as well. Accordingly, we have no hesitation in upholding the impugned disallowance. Needless to add, the assessee shall be entitled to deduction in its respect u/s. 37(1), of course subject to the satisfaction of the AO with regard to the genuineness of the assessee’s claim, in the year of payment/s Disallowance of prior period expenses made - Held that:- The assessee admittedly following mercantile method of accounting, with each year being an independent unit of assessment, we find no reason not to uphold the impugned disallowance, even as fairly conceded to by the ld. AR during hearing. So, however, we consider it as incumbent upon us to state that while finalizing the assessment for AY 2009-10, prior period expenditure to the extent the same relate to AY 2007-08, subject to his examination and verification, be allowed by the AO. The onus to furnish the relevant details, as well as press any claim/s in its respect, would however be on the assessee. Disallowance u/s. 40(a)(ia) - amounts qua which tax deducted at source (TDS) had been deposited by the due date of filing of the return of income u/s. 139(1) - Held that:- We do not find anything wrong in the deletion as directed by the ld. CIT(A). We must though add that the AO shall verify that the assessee does not get a double deduction in respect of the amount/s deleted by the ld. CIT(A), i.e., in the year of payment, in-as-much as sec. 40(a)(ia) only introduces a timing difference. The amendment to section 40(a)(ia) being subsequent in time, it may well be that the assessee had, in terms of the provision as it stood for the relevant years, claimed and been allowed deduction for the year/s when the TDS stands deposited to the credit of the Central Government. The onus to satisfy the AO in this regard, i.e., that there is no double deduction qua the amount deleted by the ld. CIT(A), being ₹ 744.32 lacs and ₹ 1058.44 lacs for AYs 2007-08 and 2009-10 respectively, would be on the assessee. The returns for the respective years having been ostensibly furnished in the following years, i.e., the previous years relevant to AY 2008-09 and AY 2010- 11 respectively, all that is required, for the purpose, is to see if the assessee had made any claim qua the said sum for these years, i.e., with reference to its disallowance for the relevant years. Addition credited to the suspense account - inferred by the AO as an unexplained liability and, accordingly, added as income - Held that:- The subject matter of the assessee’s Gd. 6 for AY 2009-10 being the same, the same stands also confirmed at the impugned amount of ₹ 27,100. We may though add that the latter sum of ₹ 27,100 should not include – in whole or in part, the former sum of ₹ 21,750, else, to that extent, it would be a case of a double addition. We say so as it could well be that the excess credit as on 31.03.2007 continues to obtain (to whatever extent) as on 31.03.2009 as well, in which case it would amount to a double addition. The onus however to show that it is so would be on the assessee Addition on outstanding purchases - Held that:- explained that of the sum of ₹ 85.99 cr. outstanding at the year-end, ₹ 66.10 cr. represented the opening balance from the earlier years. Of the balance ₹ 19.89 cr., ₹ 19.85 cr. represented provisions in respect of bills payable, salary payable, etc., leaving a balance of ₹ 4.05 lacs, which was accordingly confirmed as unexplained credit. Very clearly, the assessee has no explanation for this sum, which represents neither an opening balance nor a provision was during the year. The confirmation of the addition to this extent is accordingly confirmed. Addition in respect of interest on FDRs - Held that:- The assessee is maintaining its accounts, disclosing business income, on mercantile basis. Section 145 obliges an assessee to maintain books either on cash or mercantile basis, so that hybrid system of accounting is impermissible w.e.f. AY 1997-98. The assessee has, we are sorry to state, at no stage, i.e., during the audit u/s. 142(2A); the assessment proceedings; the remand proceedings – the ld. CIT(A) calling for a remand report on quite a few issues, as well as in the appellate proceedings, made any effort to call for the relevant details, i.e., the interest accrued on its different FDRs as outstanding as at the relevant/s year-end. The Revenue is under the circumstances constrained to make an estimate of the interest accrued, and which is in our view quite reasonable as, clearly, the maturity period is apparently beyond 45 days. This is as a maturity period of upto 45 days yield a turnover much higher (i.e., at 8 times the average holding) than that obtains. We therefore have little hesitation in confirming the said addition. Non-allowance of the credit for TDS - Held that:- Though the AO has taken care to deduct the interest credited in accounts for the relevant years, the interest accrued for f.y. 2006-07 and f.y. 2008- 09 (corresponding to AYs. 2007-08 and 2009-10) may stand receive and, accordingly, credited in accounts during f.y. 2007-08 (AY 2008-09) or f.y. 2009- 10 and beyond (i.e., AY 2010-11 and/or subsequent years). The matter accordingly is restored back to the file of the AO to allow the assessee an opportunity to present its case in this regard, even as, we may clarify, that in principle we find no infirmity in the Revenues’ claim or the addition as made by the AO. Disallowance of depreciation - Held that:- audit report u/s. 142(2A) carried a disqualification in that the bills for addition to fixed assets were not produced for verification. Further, that the depreciation had been charged in excess by ₹ 1500. The AO accordingly called upon the assessee to produce the bills for the additions to the fixed assets during the year (to machinery and furniture and fixture). The same being not produced, he worked out the depreciation as per the relevant provision at ₹ 82,325 and, accordingly, made a disallowance for 83,825 (Rs.82325+1500). The same stood confirmed in appeal in the absence of any improvement in its case by the assessee. The position continues to be the same before us. Accordingly, we have no hesitation in confirming the same. Disallowance of claim for service-tax - Held that:- Revenue authorities have drawn the presumption of non-payment on the basis of non- production of the relevant challans. Even if the same are not forthcoming, if there is no outstanding liability to service tax, as otherwise there would be a demand raised by the concerned Department, and the assessee’s accounts reflect the payment thereof, the presumption would be that the same has been paid. And therefore, could be allowed on that basis. The AO could verify the payment/s – with reference to the date/s of payment, from the concerned department. The position, we may though clarify, would be different where the excess service tax stands collected, and credited to the income account, in which case there is admittedly no question of payment thereof, so that the same stands rightly accounted as income. The burden to prove its claim/s, it may be clarified, would be on the assessee, and which it may do at the time of the AO giving appeal effect to this order, for which he shall allow the assessee a reasonable opportunity. Disallowance u/s. 40(a)(ia) on the short deduction of tax at source - Held that:- there has been a short deduction of tax at source, i.e., at the rate of 3%, no disallowance u/s. 40(a)(ia) is called for in-as- much as the tax deducted at source is on the entire sum of ₹ 1000. At the same time, the same cannot be allowed to be used as a bogey, so that an actual non- deduction, i.e., in the absence of any confusion, is sought to be impressed with the character of a short deduction, as where there has been no deduction (on ₹ 400, going by our example). The orders by the authorities are silent on this aspect. What, for example is the nature of the confusion, i.e., the different sections under which the tax was actually deducted, and ought to have been. Further, the assessee’s accounts and TDS returns would itself bear this out. The ld. CIT(A) has, however, issued a finding of it being a case of short deduction. No contradicting material, contesting the same, has been brought on record or to our notice by the ld. CIT-DR Disallowance of depreciation on fixed assets - Held that:- The assessee failing to produce the bills/vouchers in respect of addition to the fixed assets during the year, the AO worked out the depreciation thereon as per the applicable rates and period, at ₹ 25,97,261. The assessee having made a claim for depreciation at ₹ 120.17 lacs, he effected a disallowance for the balance ₹ 94.20 lacs. In appeal, it was clarified by the assessee that the AO’s working fails to take into account the depreciation on the opening value of the different block of assets. The same was worked at ₹ 87.96 lacs, so that the ld. CIT(A) allowed relief to the assessee to that extent. We find no infirmity in the impugned order Deletion of disallowance on account of employee’s share paid to be deposited to the Employees Provident Fund confirmed - amount of employees share, payable to be deposited to Employees’ Provident Fund, if deposited before the due date of filing of the return of income u/s 139(1) of the Income Tax Act then the same cannot be liable for the disallowance.
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2018 (7) TMI 1517
Additions u/s 68 - unexplained share application money - ITAT deleted the additions - revenue contended that the share applications alongwith premium were merely accommodation entries and the identity, genuineness and creditworthiness of the applicants was not proved. - Additions u/s 69B - commission payment made for obtaining accommodation entry - Held that:- SLP dismissed.
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2018 (7) TMI 1516
Exemption under Section 10(23C)(vi) - exemption was denied holding that the assessee did not satisfy the condition contained in Section 10(23C)(vi) of the Act to the effect that it was existing solely for educational purposes and not for purposes of profit - Held that:- SLP dismissed.
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2018 (7) TMI 1515
Addition u/s 69C - books of account seized during the search - rejection of books of accounts - Held that:- SLP dismissed.
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2018 (7) TMI 1514
Claim as interest expenditure as business expenditure - interest on funds borrowed to purchase land which is part of inventory of the assessee company - purchase and holding of inventory item - Held that:- SLP dismissed.
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2018 (7) TMI 1513
Disallowance of sum contributed to the trust registered u/s. 12AA and holding the said amount to be business expenditure - the expenses actually given in donation to the trust was to be with the requirement of trust for the benefit and betterment of quality of milk to meet the health of the animals - Held that:- SLP dismissed.
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Customs
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2018 (7) TMI 1543
Jurisdiction - power of Finance Ministry u/s 25(2) of Customs Act to consider the issue of exemption of the differential duty - Import of restricted item - Garlic - Special licences to import 5000 mt during the period of shortage - increased rate of customs duty from 30% to 100%. Held that:- It is quite apparent that when the Central Government exercises a power under Section 25 of the Act. It does so as a delegate of Parliament; the rate and the conditions applicable have the effect of altering the customs duty prescribed in the Customs Tariff Act, 1975. This power is relatable and is exercised concurrently with Section 8 of the Customs Tariff Act. Therefore, there is certain amount of deliberation and exclusive consideration based upon the economic factors variant. Section 25(2) of the Customs Act which seems to suggest an exception to Section 25(1) of the Act i.e. enabling the Central Government to make and issue “a special order in each case exempting from the payment of duty, in the circumstances under which such exemption is to be granted”. The placement of Section 25(2) of the Act leaves one in no doubt that this power is an extension and amplification of general power under Section 25(1) of the Act. It would not be appropriate to direct the Central Government, at this stage, and after this lapse of time to consider the petitioner’s case on the ground of special or exceptional circumstances. It is not disputed that the petitioner also trades in garlic and presumably had its own retail outlet chains. The law prevailing i.e. the rate of duty as on the date of import (Section 15 of the Act) covers petitioner’s case - petition dismissed - decided against petitioner.
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2018 (7) TMI 1542
100% EOU - import of Mavowatt meters - benefit of N/N. 53/97 – Custom dt. 03.06.97 - it was alleged that the imported meters have been cleared on payment of appropriate duty without undertaking any manufacturing operation - case of appellant is that process of clearance of goods after testing, calibaration amounts to manufacture in terms of Para 9.37 of the Foreign trade Policy and hence the demand is not sustainable. Held that:- The contention of the Appellant that they undertook activity of calibaration and testing is absolutely incorrect. The Commissioner (Appeal) also found that the statement of senior functionaries clearly indicated that the goods did not underwent any processing/ testing/ caliberating activity - demand upheld. Penalty - Held that:- The appellant tried to mislead by making story of activities carried out on the imported goods which was found contrary to the statements of various persons recorded. Thus appellant did not come with their defence with clean hands - in view of the malafide conduct of the appellant, they do not deserve leniency - penalty also upheld. Appeal dismissed - decided against appellant.
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2018 (7) TMI 1541
Rectification of Mistake - The first error that has sought to be rectified is name of the respondent which is mentioned in the order dated 07-11-2016 as “M/s S V Technologies Pvt Ltd”, whereas in the impugned order it is mentioned as “M/s S V Medical Technologies Pvt Ltd.” - Held that:- Since the correct name needs to be mentioned, we rectify the error by stating that respondent's name shall be read as “M/s. S V Medical Technologies Pvt Ltd” - The application for rectification of mistake to that extent stands allowed. Recall of order - the issue involved in this case is regarding classification and as per Board circular dated 17-12-2015, the classification refund issues are excluded from the coverage of the said circular of the monetary limit - Held that:- Since the final order dated 07-11-2016 is dismissing appeal only on policy of non-litigation on monetary ground and the issue being of classification, we recall order and direct the Registry to list the appeal for disposal in its due course for deciding issue on merits. ROM disposed off.
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2018 (7) TMI 1505
Classification of imported goods - 9.3 Meter Compact Cassegrain Antenna Sub-system - Model 9.3 KPK - Held that:- There is no merit in this appeal, which is hereby dismissed.
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2018 (7) TMI 1500
The order dated 23.05.2017 of the High Court has spent its force inasmuch as pursuant thereto the learned Commissioner (Customs) has passed an order dated 28.06.2017 - Petitioner may, if so advised, challenge the said order of the Commissioner - SLP is dismissed.
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2018 (7) TMI 1499
Revocation of CHA licence - time limit under Regulation 22 of the CHALR for issuance of an SCN - Held that:- There is no merit in this appeal - Admission is refused and the civil appeal is, accordingly, dismissed.
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Service Tax
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2018 (7) TMI 1539
Levy of Service Tax - legal services / law firm - amounts paid to senior counsel for services rendered to third party clients in the form of representation in Courts etc. - Rule 5 of the Service Tax (Determination of Value) Rules, 2006 - Held that:- Division Bench ruling of this Court in Intercontinental Consultants & Technocrats Pvt. Ltd. v. Union of India [2012 (12) TMI 150 - DELHI HIGH COURT] had declared that Rule 5(1) of the Rules to the extent it mandates inclusion of reimbursements to the assessee, in respect of payments made to third parties cannot be subjected to service tax levy. The Revenue could not have included the payments received as reimbursements, payments made by the assessee/petitioner or received through reimbursements towards Senior Counsel fee, in the value of services rendered by it - impugned order quashed - petition allowed - decided in favor of petitioner.
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2018 (7) TMI 1538
Commercial or Industrial Construction Services - services of construction of women hostel for and on behalf of Ministry of Women and Child Development, Government of India - construction of Civil Services Offices Institute - Held that:- The services of construction of women hostel for and on behalf of Ministry of Women and Child Development, Government of India and construction of Civil Services Offices Institute are not commercial in nature - Since the demand under commercial or industrial construction for a period upto 30th June, 2012 has been dropped and the period for both the appeals is prior the said date and that the Department has not filed an appeal challenging those findings by virtue whereof the demand in appeal had already been dropped - demand set aside. Maintenance and Power Back up Expenses Recovered from the Clients - power backup provided by the appellant to the sub-contractor - scope of SCN - Held that:- It was not at all disputed by the Department as to whether on the power supply/power back up any sales tax has been paid by the appellant or not. Thus, in the impugned order the respective adjudicating authorities have tried to make out a new case against the appellants - The law has been settled that the adjudicating authority cannot go beyond the show cause notice, as it was held by Hon’ble Supreme Court in the case of CCE, Bhubaneswar-I vs. Chambdany Industries Ltd. [2009 (9) TMI 7 - SUPREME COURT OF INDIA] - the adjudicating authority has committed an error while confirming the impugned remand solely on the basis of lack of evidence qua discharging liability of VAT by the appellant when the same was not the issue in the show cause notices - demand set aside. Payment of Service Tax for the Period Prior to Registration through Cenvat Credit, whether admissible or not? - Held that:- It is the apparent and admitted case that the appellant has not discharged the Service Tax for the impugned periods within the stipulated time. Irrespective the payment of the same through the Cenvat Credit availed post the said periods, the fact still remains is that the deficiency has already been made good qua Service Tax for the said periods, however with delay - interest on delayed payment thereupon in accordance of Section 73 (1) of Finance Act, 2004 read with Rule 14 of Cenvat Credit Rules, 2004 is recoverable from the appellants - demand upheld. CENVAT Credit - Common Input Services on account of Appellant being providing Taxable and Exempted Services - Held that:- It is clear that Cenvat Credit on input services used for exempted services is not admissible. Any credit taken by the appellant on such input services, as were meant for rendering exempted services, is rightly been denied to the appellant by the adjudicating authority below - It is appellant’s admitted case that despite discharging taxable as well as exempted services no separate accounts were maintained. No proper option as enshrined under Rule 6 (3) of CCE, 2004 has been availed - demand upheld. Manpower Recruitment or Supply Agency Services - Services for providing skilled/semi-skilled workmen to assist the contractor in the execution of works - Held that:- The activity apparently is not in the negative list i.e. in the entries of Section 66 D nor is the one of mega Notification No. 25/2012- ST dated 20th June, 2012 - the activity has rightly been held taxable for the period w.e.f. 30th June, 2012 - demand upheld. Extended period of Limitation - penalty - Held that:- Rendering taxable services without getting themselves registered for discharging their liability qua those services, the same is held to be positive act on part of the appellant with sole intention to evade tax - extended period and penalty upheld. Appeal allowed in part.
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2018 (7) TMI 1537
Club and Association Services - principles of mutuality - appellant is a Trust engaged in the activities of teaching Yoga and for research on Vedic traditions of Yoga and are registering the interested people in these activities as their members - appellant has neither paid tax nor taken registration - demand of Service Tax - Held that:- The amount of consideration ranging from ₹ 11,000/- to 11,00,000/- has been received by the appellant for extending life time membership is an amount, which is received where the person paying it is becoming the member as a shareholder of the Trust and the element of mutuality comes into existence between the Trust and the said members - the issue is squarely covered by the decision in the case of Sports Club of Gujarat Ltd. vs. Union of India [2013 (7) TMI 510 - GUJARAT HIGH COURT], where Club and Association Services have already been held ultra vires - demand set aside. Donations received by the appellant under one of its Scheme called Vanprastha Ashram Scheme - Held that:- By making such payments, such person does not become the member of the Trust as such, but become the lease-holder for a particular accommodation respective to the price paid by him under the Scheme. This observation is sufficient to hold that such person become the shareholders of the appellant’s Scheme but not the members of the Trust. Such members cannot be cloth with the status as that of founder members of the Trust and the element of mutuality therefore, is missing in such a relationship - The Trust and the member of Vanprastha Ashram Scheme become two different legal entities. Any services of club and association being provided by the appellant to such members are therefore, taxable services under Section 65 (25a) - demand upheld. As far as the plea of the appellant being charitable in nature, we draw our support from the case of FICCI vs. CST, Delhi [2014 (5) TMI 183 - CESTAT NEW DELHI], wherein it was held that for any association to be called as the one of charitable nature discharging the public service it is essential and necessary that the activity qua which the demand has been raised must be essential and necessary for the proper functioning of the organisation and must be incidental to carrying out all the purposes for which it is constituted - In the present case, the members of Vanprastha Ashram Scheme are not member of the Patanjali Trust, the appellant herein, but are the members under particular scheme of the said Trust for the only purpose of being leased out a residential accommodation for their life time. The said leasing, to our opinion, is not ancillary and incidental object to the main charitable object of the appellant Trust - he benefit of exemption for appellant being charitable in nature cannot be granted. Intellectual property Service - whether the permission as given by the appellant Trust to Star News Channel to record the Yoga Camps and to telecast on their News Channel can be termed as a right to Intellectual property, which is either a trade mark or design(s) or patent(s) or any other similar intangible property recognized as such under any existing Indian law? - Held that:- The permission as granted by appellant Trust is neither a trade mark nor a design nor even a patent. At best it is in the form of copy-right, which has been excluded from the definition of Intellectual Property Service. Hence, mere grant of permission by the appellant to cover its Yoga Camps for being telecasted does not emerge from the above definition of Intellectual Property - demand set aside. Extended period of limitation - Held that:- Appellant is a Trust rendering its services across the country at mega level. It is also been registered for rendering some taxable services. Unawareness on part of such Trust cannot be presumed. Thus, not disclosing the taxable income shows an intention to evade payment of tax - invocation of extended period confirmed. Appeal allowed in part.
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2018 (7) TMI 1536
Condonation of delay of 370 days in filing the appeal - case of appellant is that the delay was caused due to mentioning of wrong address in the order, due to which the order was not communicated to him, but was delivered to wrong address - Section 35(B)(3) of Central Excise Act, 1944 - Held that:- As per section 35(B)(3) of Central Excise Act, 1944 the appeal has to be filed within 3 months from the date of communication of the order - Perusal of record shows that the appeal memo as was filed by the applicant before Commissioner (Appeals) bears the address of appellant being 1/12, Ranthambore Complex, M.P Nagar, Bhopal. Hence, the Supdt. Commissioner (Appeals) committed no mistake while delivering the O-I-A at the said address. It is also perused that 1/12, Ranthambore Complex, M.P Nagar, Bhopal is the address of Mr.Hariom Jatiya, who is none but the Managing Director of the applicant/appellant. The Subsequent plea of delay on account of correspondence for seeking clarification about order number also retains no significance, it merely being a typographical error. The reason taken in the application is not only held to be false, but is held to be misleading one. In the present case since the applicant/appellant was very much aware of the show cause notice served upon him and the subsequent adjudication, the benefit of discretionary relief cannot be extended in favour of the applicant/appellant - delay cannot be condoned - application for COD dismissed.
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2018 (7) TMI 1535
Valuation - inclusion of reimbursement made by the principal to the C&F Agent on account of various expenses - Held that:- The decision of Hon”ble Supreme Court in the case of UOI Vs. Intercontinental Consultants [2018 (3) TMI 357 - SUPREME COURT OF INDIA] is applicable to the facts of present case, where it was held that High Court was right in interpreting Sections 66 and 67 to say that in the valuation of taxable service, the value of tax service shall be the gross amount charged by the service provider “for such service” and the valuation of tax service cannot be anything more or less than the consideration paid as quid pro qua for rendering such a service. The reimbursement made by the principal to the C&F Agent on account of various expenses do not form part of amount chargeable to Service Tax - appeal dismissed - decided against Revenue.
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2018 (7) TMI 1534
Rectification of Mistake - Revenue submits that the Tribunal has wrongly recorded that the First Appellate Authority has relied upon the exemption N/N. 10/2003-ST. - Held that:- There are no merits in the application filed by the Revenue for rectification of mistake in the Final Order No. A/31484/2016, the Bench has categorically recorded the factual position as well as how the respondent is eligible for N/N. 10/2003-ST. - there is no specific error is pointed out by the Revenue in the application which needs rectification. Application for rectification of mistake can be made only in respect of an error apparent on the face of the records - Application for ROM dismissed.
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2018 (7) TMI 1533
Health Club Fitness Center Service - eligibility for exemption under N/N. 25/2012 ST - Held that:- Appellant are rendering Health care services which are related to Health problem and are mainly in the nature of corrective as well as preventive of the probable diseases which occur due to the obesity and overweight of the patients. That the services are rendered under the direction of qualified physiotherapist - However, the Appellant either during investigation or in their submission before lower authorities has never adduced any evidence that the services are being rendered by an authorized medical practitioner or para medicals. The Appellant has come up with such contention only before us at the Appellate stage. Even from the treatment offered it does nowhere occurs that the same are physiotherapy services as the nature of services shown are for excessive weight or shoulder pain - The Appellant is not entitled to the exemption from payment of service tax under Notification and the service tax demand has been correctly made - penalties imposed are also upheld. Appeal dismissed - decided against appellant.
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2018 (7) TMI 1532
Classification of services - It appeared to the department that the respondent were providing Business Auxiliary Services and were instead paying service tax under Manpower Supply service - Whether the provision of services by way of supplying manpower under the aforesaid two types of contract by the respondent amount to business auxiliary services or simply manpower supply services? Held that:- The holistic reading of the two contracts clearly indicates that the nature of contract is provision of manpower including manpower to supervise the labour and to ensure that they undertake the work of the requisite quality. It can indeed fall under the category of manpower supply services. Of the sub clauses under the definition of Business Auxiliary Service, the Department wants to classify it under special clause (vii) which is a service incidental or auxiliary to any of the activities specified in sub clauses (i) to (vi). However, neither in the show cause notice nor in the Order-in-Original or in the grounds of appeal, the department clarified as to which of the sub clauses (i) to (vi) is relevant. Unless this is specified, it cannot be examined whether the services provided by the respondent are incidental or auxiliary to that category - the services rendered by the respondent cannot be classified as “Business Auxiliary Service”. Appeal dismissed - decided against Revenue.
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2018 (7) TMI 1531
Reverse Charge Mechanism - Classification of services are not clear - Demand is sought to be made on the ground that there is a difference between the ledger amounts and the amounts reflected in the Service Tax returns filed by the appellant - Held that:- Hon’ble Supreme Court in the case of Ranbaxy Laboratories Limited vs. Union of India [2011 (10) TMI 16 - SUPREME COURT OF INDIA], held that it is a well settled proposition of law that a fiscal legislation has to be construed strictly and one has to look merely at what is said in the relevant provision; there is nothing to read in; nothing to be implied and there is no room for any indentment”. The order fastening a liability on the assessee has to pass this test. On going through the Order-in-Original, it is found that Ld. Commissioner has not examined as to how each of the items of expenditure discussed above amount to services received by the appellant in India and how they are chargeable to service tax under reverse charge mechanism. Also there are various items of expenditure such as salaries, office expenses etc. which need to be classified by the department in the first place to show how these amount to services rendered by the service provider abroad and received in India and how they are liable to charge to service tax under reverse charge mechanism. In the present case, where the appellant is supposed to have received the services and is liable to pay service tax under reverse charge mechanism, it is essential that the department say what services were received by the appellant and how they were unclassifiable and how they were liable to be charged under reverse charge mechanism and compute their tax liability accordingly. This is an original work to be done with respect to each of the specific items of expenditure on which service tax is proposed to be charged. It is appropriate to remit the matter back to the original adjudicating authority with a specific direction to compute the demand after specifying how each of the items of the expenditure are chargeable to service tax - appeal allowed by way of remand.
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2018 (7) TMI 1530
Valuation - Commercial or Industrial Construction Services - inclusion of value of free supply of material in assessable value - N/N. 01/2006 dated 01.03.2006 - Held that:- The issue of inclusion of cost of free supply of goods in the gross value is decided by Apex Court in the case of Bhayana Builders Pvt. Ltd., [2018 (2) TMI 1325 - SUPREME COURT OF INDIA] holding that cost of free supply of the goods should not be included for discharging the tax liability. Appeal dismissed - decided against Revenue.
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2018 (7) TMI 1529
Condonation of delay of 1434 days in filing the appeal - the delay has not been properly explained - Held that:- The Order-in-Original was received on 28.02.2013 by the self same Shri Shamsudhin as has been stated by the appellant applicant in condonation of delay correctly - Tribunal condoned the delay of 129 days and second appeal, on the same issue, delay of 413 days was condoned by their Lordships, and on the same issue, the appellant is seeking condonation of delay of 1434 days in filing the appeal before the Tribunal. The appellant was aware of the litigation he has been taking up with the Department on the self same issue from 2004-2005, should have been more diligent filing this appeal in time. The explanation given by the Learned Counsel for the appellant in the application for condonation of delay and affidavit in support thereof, are not acceptable - the delay has not been properly justified - The application for condonation of delay in filing of appeal is dismissed.
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2018 (7) TMI 1528
Utilization of CENVAT credit for discharge of service tax from GTA services - period April 2007 to March 2008 - whether the appellant herein can utilise the CENVAT credit for discharge the service tax liability under reverse charge mechanism for GTA services received or otherwise? Held that:- The issue is for the period April, 2007 to January, 2008 and covered by the Larger Bench decision of Tribunal in the case of Panchmahal Steel Ltd. [2014 (4) TMI 490 - CESTAT AHMEDABAD], where it was held that an assessee can utilise the CENVAT credit for discharge of service tax liability on GTA services till 31st March 2008. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1527
Benefit of N/N. 12/2003 dated 20.06.2003 - Commercial Training & Coaching Service - inclusion of the value of study material which is provided by the respondent to various students - Held that:- Advertising for various coaching programmes clearly mentions the price of books and study materials. In such factual scenario, the claim for exemption under N/N. 12/03-ST cannot be rejected. Appeal dismissed - decided against Revenue.
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2018 (7) TMI 1512
Liability of tax - consideration received from participants for imparting training classified under commercial training or coaching services - exemption under N/N. 24/2004-ST - Held that:- There is no merit in these appeals - Admission is refused and the civil appeals are, accordingly, dismissed.
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2018 (7) TMI 1511
Consulting Engineer Service - Held that:- We are not inclined to interfere with the impugned Order passed by the learned Customs, Excise and Service Tax Appellate Tribunal - The civil appeals are, accordingly, dismissed.
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2018 (7) TMI 1510
Liability of tax - construction activities mainly non commercial structures - Held that:- There is no cogent reason to entertain the appeal. The judgment impugned does not warrant any interference - The Civil Appeal is dismissed.
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2018 (7) TMI 1508
Review petition - Held that:- We have carefully gone through the review petition and the connected papers - there is no merit in the review petition and the same is accordingly dismissed.
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2018 (7) TMI 1496
Valuation - abatement in the value of taxable services - N/N. 1/2006-ST dated 01.03.2006 - inclusion of free supplied material - Held that:- There are no merit in the civil appeal and the same stands dismissed.
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Central Excise
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2018 (7) TMI 1526
Clandestine removal - CENVAT Credit - countervailing duty paid inputs - Whether the appellant/assessee was entitled to CENVAT credit in respect of the countervailing duty paid inputs? Held that:- The question of granting of benefit of input credit or input tax adjustment towards final tax liability of an assessee has engaged the attention of the Court on many occasions. The context of these disputes have been many fold; in one class of cases, the benefit was claimed for a pre-excise registration period; in the other class of cases, it was when the benefit of exemption notification could not be given to the manufacturer; in yet another category, the issue involved like in the present case, was clandestine removal. In the present case, this Court notices that the Commissioner in fact found that there is a complete identity with respect to Icon Industries (assessee on the one hand and M/s Marvellous Impex, the importer which had procured the PVC resin). The only finding was that M/s Marvellous Impex had imported the goods for use of M/s Hemant Trading (another firm created by the assessee proprietor). That firm did not carry on any activity and appear to be fictitious one. Nevertheless the product in question, PVC resin, was used to manufacture PVC battery separator by the assessee - There is no dispute that the inputs used i.e. PVR resin was by the assessee M/s Icon Industries; in fact, the basic duty liability and penalty have been imposed on the basis of these findings. However, it is equally a matter of record that certain quantity of PVR resin too was used as a raw material. There may be no doubt that with respect to other inputs the assessee did not posses any document. However, that ought not have blinded the authority taking note of material which did exist on record (in the form of the payments made towards CVD) which can be legitimately claimed as input credit by the assessee. The respondent-Central Excise Authorities are directed to proceed to grant such Cenvat credit as is permissible to the appellant/assessee, having regard to the documents which are on record and which may be relevant and can be produced by it for the purpose - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1525
Invocation of extended period of limitation - penalty - inspite of clear directions by this Tribunal for supplying the copies of seized records as requested by the Appellant, the Commissioner did not supply the documents and rather recorded that the Appellant could have very well obtained the necessary documents from their own sources such as their clients - Held that:- The non-compliance of the directions in the said remand order is a pre-requisite for de novo adjudication. The department was duty bound to supply the documents to the appellant as per the directions of this Tribunal. But, the Commissioner appears proceeded on premise that it was upto the appellants to produce the documents. From the manner in which the directions have been breached, it would appear that the department is unable to produce the documents. No purpose will be served by a further remand of this old matter. This show cause notice has not made a valid case for invoking of the extended period. Therefore, elements of suppression or misdeclaration cannot be invoked - demand beyond normal period of limitation is set aside - penalties also set aside. Appeal allowed in part.
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2018 (7) TMI 1524
Clandestine Manufacture and Removal - MS ingots - it was alleged that the heat register, private heat register and ingots movement register indicate that there was excess production which was suppressed from the statutory records - whether appellant SSPL has recorded the correct production of MS ingots or otherwise? Held that:- This is the third round of litigation before the Tribunal on the very same issue. In the first round of litigation, the Adjudicating Authority confirmed the same demands raised against SSPL and imposed penalties, also on KSPL - The entire findings of the Adjudicating Authority are only on the records of both private and official showing the production of MS ingots per heat in the range of 3.5 to 3.8 MTs. The findings recorded by the Division Bench in COMMISSIONER OF CENTRAL EXCISE, HYDERABAD – III VERSUS M/S SINGARENI STEELS PVT. LTD. [2010 (9) TMI 1240 - CESTAT BANGALORE] as to the production capacity of appellant SSPL of the furnace installed, has reached finality. Since these findings have attained finality, the Adjudicating Authority could not have without filing an appeal and adducing contrary evidence gone beyond the findings recorded by the Tribunal. In the absence of so, in the adjudication order, the Lower Authority should have followed the order of the Tribunal and considered the production capacity of the appellant SSPL as indicated in the Final Order recorded by Division Bench. The allegation of the Revenue that appellant SSPL had clandestinely manufactured excess production and removed the same without payment of duty falls flat - In view of the findings of the Division Bench order, it is found that lower authorities have erred in coming to a conclusion there was excess production and clearances clandestinely from SSPL. The entire demand needs to be set aside. Demand of Interest and penalty - Held that:- Since the entire demand of SSPL stands set aside, the question of interest and penalty on SSPL does not arise, as also the question of imposing penalty of KSPL also does not arise. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1523
Manufacture - activity of Re packing/relabelling - Section 2(f)(iii) of Central Excise Act, 1944 - appellant are carrying out activity of procuring spare parts from various vendors, packing/repacking them into unit containers, fixing MRP label on the same and clearing it to various Dealers/Customers etc under their brand. Held that:- On perusal of third Schedule for the relevant period, the goods falling under Chapter heading 3208 is covered under Sr No. 34, the goods falling under Chapter 8536 is covered under Sr. No. 93 and the goods falling under Chapter 8539 is covered under Sr No. 94 of the third Schedule issued under Section 2(f)(iii) of the Central Excise Act, 1944. Therefore on this undisputed position the goods of 8208, 8536 and 8539 when repacked/relabelled and rendered the same for marketable shall amount to manufacture. Prior to 1-6-2006 goods falls under 3208, 8536 and 8539 indeed falling under third schedule, hence repacking and relabeling of these goods was amount to manufacture. Accordingly, appellant was liable to pay duty. Extended period of Limitation - penalty u/s 11AC - Held that:- Since the appellant has not considered their activity as manufacture, they have not declared and disclosed the activity and removal of the said goods without payment of duty to the department, therefore there is clear suppression of facts on the part of the appellant, hence demand for longer period sustains - penalty also upheld. Appeal dismissed - decided against appellant.
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2018 (7) TMI 1522
Dutiability - process of printing amounting to manufacture - benefit of N/N. 7/2003 dated 01.03.2003 denied - Whether in the facts of the case the appellants were entitled for the exemption under the N/N.7/22003-CE dated 01.03.2003? - Whether the Penalties were imposed correctly against them? Held that:- Sr.No.3 of the said notification exempts goods specified therein processed without the aid of power or steam, with or without using of machines. There is no explanation has been inserted below Sr.No.3 so as to deem that lifting of water etc and mixing of dyes etc by stirrer the said fabrics have been processed without the aid of power or steam. Thus the units who are engaged in processing or printing of MMF using power operated pumps for lifting water or using power operated stirrer for mixing the dyes are not eligible to claim the exemption under said Notification. Penalties - Held that:- Considering the facts that the proprietor and the firm are one and the same, the imposition of penalty on M/s Neelam Prints as well as proprietor Shri Iftikhar Ahmed was not called for. Therefore, the penalty of ₹ 1,70,108/- imposed on Shri Iftikhar Ahmed is set aside. As regards enhancement of penalty to ₹ 10,000/-, Rule 25 prescribes the maximum amount of penalty which can be imposed and it is not a mandatory penalty. Therefore, enhancing of penalty to ₹ 10,000/- is set aside - The penalty imposed upon M/s Neelam Prints under Section 11AC being mandatory in nature cannot be reduced and is upheld. Appeal allowed in part.
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2018 (7) TMI 1521
Refund of duty element payable on the trade discount given to their dealers - whether the assessee is entitled to refund of duty in respect of the trade discounts which he has given subsequent to the clearance of the goods? - Held that:- This refund was rejected by the Assistant Commissioner on merits (not on the grounds of unjust enrichment itself) - As these cases involve the question of valuation, they should appropriately go to the Division Bench, although amounts involved are not large. The Registry is directed to place these before the Division Bench in due course.
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2018 (7) TMI 1520
Valuation - Interpretation of Statute - definition of related person under section 4 of Central Excise Act, 1944, read with definition of "interconnected undertakings" in Section 2(g) of MRTP Act, 1969 - Held that:- The same issue has been decided by this Bench in the case of BLACK GOLD PROFILES PVT LTD. VERSUS CCE, C&ST, VISAKHAPATNAM [2018 (2) TMI 1231 - CESTAT HYDERABAD], where it was held that The combined shareholding of the partners in each firm, who are also shareholders in the body corporate can alone be added up for the purpose of determining whether they cross the 50% shareholding bench mark. M/s Black Gold and the two firms cannot be considered as related persons for the purpose of section 4(3)(b)(i) of Central Excise Act, 1944 - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1519
Valuation - turnkey projects - inclusion of value of the accessories in assessable value - whether the valuation of the transformer adopted by the appellant basing reliance on chartered accountant certificate, cleared to self for executing HVDs works under turnkey project is correct or otherwise, as there were price schedules in the agreement with APSPDCL? - whether the cost of accessories under dispute to be included to the price of transformers or otherwise? Held that:- It can be seen from the invoice and the Chartered Accountant Certificate, appellant had discharge the Central Excise duty at the higher assessable value then as certified by the Chartered Accountant - The discharged duty liability by the appellant on specimen invoice reproduced above seems to be inconsonance with the law. It is undisputed the transformers were used for erection at the project site deeming it as self consumption. The Tribunal in the case of Blue Star Ltd., [2016 (12) TMI 1518 - CESTAT MUMBAI] has come to a conclusion, which goods cleared on self basis to the site of the customer, valuation done should be in accordance with the provisions of Section 4(1)(b) of the Central Excise Act, 1944. The demand for the differential duty from the appellant is unsustainable and liable to be set aside - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1509
Stay on recovery - Excisability of Signages which are erected at various petrol bunks of IOC - Circular No.58/1/02-CX dated 15.1.2002 - Held that:- The matter is at pre-assessment proceedings stage. It is thus directed that as and when assessment proceedings are completed, 50% of the Principal VAT amount would be deposited with the concerned authorities. Upon such deposit, all further recovery shall remain stayed.
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2018 (7) TMI 1507
Review petition - Held that:- There is no case for review of order dated 13.11.2017 is made out - the review petition is dismissed.
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2018 (7) TMI 1506
Area based exemption - N/N. 50/2003-CE dated 10/06/2003 as amended by N/N. 76/2003-CE dated 05/11/2003 - Held that:- There is no merit in the present appeal - the appeal is dismissed.
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2018 (7) TMI 1504
Valuation - sale of goods from Factory Gate as well as from Depots - Held that:- In view of the decision of this Court in Commissioner of Central Exercise, vs Tata Engineering and Locomotive [2015 (10) TMI 1043 - SUPREME COURT], it is not considered appropriate to entertain the present appeal - Admission is refused and the civil appeal is, accordingly, dismissed.
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2018 (7) TMI 1503
Valuation - inclusion of free supply of goods by customer in assessable value - Held that:- There is no merit in this appeal - Admission is refused and the civil appeal is, accordingly, dismissed.
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2018 (7) TMI 1502
Review petitions - Held that:- There are no merits in this appeal - The special leave petitions are dismissed.
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2018 (7) TMI 1501
100% EOU - SSI exemption - clandestine removal - duty paying documents - parallel/fake invoices - Held that:- There is no merit in the present appeal - Admission is refused and the civil appeal is, accordingly, dismissed.
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2018 (7) TMI 1498
Extended period of limitation - Held that:- There is no merit in the present Special Leave Petition - The Special Leave Petition is accordingly dismissed.
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2018 (7) TMI 1497
Marketability - Demand - CBEC circular 495/61/99-CX-3 dated 22-11-1999 - Held that:- There are no merit in the review petitions and the same are accordingly dismissed.
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CST, VAT & Sales Tax
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2018 (7) TMI 1518
Maintainability of petition - alternative remedy of appeal - Held that:- The petitioner, in fact, bona fide pursued his remedy here, and this Court now holds that the petitioner’s remedy lies elsewhere before the appellate authority - Fairness demands, under these circumstances, that the petitioner be given time to approach the appellate forum. In the meanwhile, the respondent should not take steps that may render the petitioner’s statutory remedy illusory. The respondent should defer coercive steps for six weeks from today, and the petitioner, in the meanwhile, approach the appellate forum.
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Indian Laws
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2018 (7) TMI 1560
Eligibility to get promoted to the rank of CIT - Held that:- When the DPC was held on 05.06.2015, for making recommendations for promotion to the post of CIT, the name of the respondent No.1 was duly included in the list of eligible candidates and he was found "fit" for being promoted. At that point in time, admittedly, none of the three categories carved out clause 2 of the O.M. dated 14.09.1992, were available to the petitioners to exclude the name of the respondent No.1 and adopt a sealed cover procedure for him. The respondent No.1 was neither under suspension, nor had he been chargesheeted by the Department, nor were any criminal proceedings pending against him. After the respondent No.1 was assessed by the DPC for suitability, his name had been forwarded to the Competent Authority, namely, the ACC for making promotions. It was only at that stage that the ACC had desired to know the status of any complaint pending against the respondent No.1. By that time, the Ministry of Home Affairs had intimated the petitioners that it had received the first stage advice by the CVC on 26.06.2015, for initiating major penalty proceedings against the respondent No.1. It is noteworthy that even by that time, penalty proceedings had not been initiated against the respondent No.1. The position remained the same when the O.A. filed by the respondent No.1 was decided by the Tribunal on 12.05.2016 right upto 06.02.2017, when a chargesheet was finally issued against respondent No.1, proposing to initiate disciplinary proceedings against him. By then, the impugned judgment came to be passed by the Tribunal directing the petitioners to promote the respondent No.1 from the date his immediate juniors who, we are informed, are about 25-30 in number, were promoted. Given the fact that the respondent No.1 did not fall in any of the categories set out in clause 2 of the O.M. dated 14.09.1992, simply because disciplinary proceedings were being contemplated against him, could not be a ground to have kept him out of the list of officers who were promoted to the rank of CIT, in terms of the promotion order dated 16.09.2015 impugned by him. the relevant date for determining the eligibility of the respondent No.1 ought to have been 05.06.2015, when the DPC had convened for making recommendation for promotion to the post of CIT, for the panel year 2014-15.
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2018 (7) TMI 1540
Authority to fill the date in an undated cheque - non-payment of the value of the cheque on dishonor of the cheque - it was alleged that petitioner failed to make any payment inspite of service of notice of demand - Section 138 of the Negotiable Instruments Act, 1881 - Held that:- The fact that the petitioner had handed over an undated cheque, in the given facts and circumstances would ordinarily lead to presumption of grant of authority to the payee i.e. the complainant to fill in the date - The assertion of the petitioner that there was no such authority gives rise to a question of fact which cannot be answered without both parties being called upon to adduce evidence - petition dismissed - decided against petitioner.
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