Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
July 29, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Service Tax
Central Excise
Indian Laws
Articles
News
Notifications
Companies Law
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S.O. 2445 (E) - dated
24-7-2020
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Co. Law
U/s 435 of Companies Act, 2013 establishment of Special Courts
Customs
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62/2020 - dated
27-7-2020
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Cus (NT)
Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seed, Areca nut, Gold & Silver
FEMA
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S.O. 2442 (E) - dated
27-7-2020
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FEMA
Foreign Exchange Management (Non-debt Instruments) (Third Amendment) Rules, 2020
GST - States
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FTX.56//2017/Pt-II/546 - dated
22-5-2020
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Assam SGST
Seeks to exempt certain class of registered persons capturing dynamic QR code and the date for implementation of QR Code to be extended to 01.10.2020.
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FTX. 56/2017/Pt-II/545 - dated
22-5-2020
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Assam SGST
Seeks to exempt certain class of registered persons from issuing e-invoices and the date for implementation of e-invoicing extended to 01.10.2020.
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64/GST-2 - dated
27-7-2020
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Haryana SGST
Notification to extend the due date for filing FORM GSTR-4 for financial year 2019-2020 by amending notification no.57/GST-2, dated 26.04.2019 under the HGST Act, 2017
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62/GST-2 - dated
21-7-2020
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Haryana SGST
Haryana Goods and Services Tax (Ninth Amendment) Rules, 2020
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56/GST-2 - dated
21-7-2020
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Haryana SGST
Haryana Goods and Services Tax (Eighth Amendment) Rules, 2020
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F.12(46)FD/Tax/2017-Pt.V-209 - dated
15-7-2020
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Rajasthan SGST
Amendment in Notification No. F.12(46)FD/Tax/2017-Pt-III-05 dated 23.04.2019
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F.12(46)FD/Tax/2017-Pt-III-200 - dated
6-7-2020
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Rajasthan SGST
Amendment in Notification No. F.12(56)FD/Tax/2017-Pt-I-39, dated the 29th June, 2017
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F.12 (46) FD/Tax/2017 Pt-III-206 - dated
6-7-2020
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Rajasthan SGST
Rajasthan Goods and Services Tax (Eighth Amendment) Rules, 2020
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F.12(46)FD/Tax/2017-Pt-III-195 - dated
1-7-2020
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Rajasthan SGST
Rajasthan Goods and Services Tax (Sixth Amendment) Rules, 2020
Highlights / Catch Notes
Income Tax
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Nature of expenditure - revenue or capital expenditure - legal expenses in connection with structuring of the transaction - merely because the transaction in question is a capital asset, the legal expenses incurred for the same will not ipso facto become capital expenditure - HC
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Offences u/s 276C(2) and 278B - allegation against the Petitioners is that they wilfully concealed the income - Where the documents were left out to be marked due to carelessness and ignorance, it could be allowed to be marked for elucidation of truth, in the interest of justice, by exercising powers u/s 391 of Cr.PC. - the Petitioners should be allowed to let in additional evidence subject to provisions of Chapter XXIII of Cr.PC in the presence of the Respondent/ complainant and his counsel. - HC
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Income accrued in India - Royalty receipt - management service fees - the management services are provided only to support SurfGold in carrying on its business efficiently and running the business in line with the business model, policies and best practices followed by the Edenred group. These services do not make available any technical knowledge, skill, knowhow or processes to SurfGold. - Additions deleted - AT
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Assessee in Default for non deduction of TDS - Validity of order u/s 201(1) and 201(1A) - period of limitation - as per 201(3)(ii) such time limit expires on 31.03.2013 - that to the assessee the time limit prescribed u/s 201(3)(i) applies as assessee has filed its statement of TDS. - AT
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Double taxation of income in the hands of BCCI and Assessee, as the member of AOP - it will be open to the AO of the appellant to reopen the case of the appellant and to decide whether the said payments received from BCCI can be taxed as income of the appellant which will be subject to our observations given on other issues raised in this appeal - income received by the appellant/assessee otherwise, except the club income, which has not been taxed at the hands of the BCCI, will be assessed as per the normal provisions of the Act. - AT
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Royalty receipt - since the provisions of DTAA overrides the provisions of Income Tax Act and are more beneficial and the definition of ‘Royalty’ having not undergone any amendment in Tax Treaty, the assessee was not liable to be taxed on aforesaid receipts of Licensing software and also on sale of Hardware - AT
Service Tax
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Imposition of penalty u/s 76 and 78 of FA - There was an ignorance on the part of the assessees regarding the service tax liability on import of services from outside India. The appellant herein immediately discharged payment of service tax on being pointed out without disputing the tax liability - Penalty set aside - AT
Case Laws:
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GST
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2020 (7) TMI 650
Attachment of Bank Account of petitioner - Jurisdiction to issue the order - violation of principles of natural justice - HELD THAT:- The learned counsel for petitioner had stated that the petitioner was willing to offer a bank guarantee to the respondent No.3 of a nationalised bank of the amount in dispute claimed to be fraudulent availment of ITC i.e. ₹ 60,08,750/- in terms of communication dated 10.06.2020 issued by the Respodent, placed on record as annexure P5 to the petition. Direction issued to provisionally release/ lift the debit freeze instructions subject to conditions and bank guarantee. List on 10th September, 2020.
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Income Tax
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2020 (7) TMI 649
Offence under Section 276 CC - non-filing of return by the petitioner/accused - Claim of exemption us 54F- HELD THAT:- As decided in M. JAYANTHI VERSUS K.R. MEENAKSHI ANR [ 2018 (4) TMI 1755 - ITAT BANGALORE] if we look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage. The above judgments are squarely applicable to this case and as such, the points raised by the petitioner cannot be considered by this Court under Section 482 Cr.P.C. In view of the above discussion, the quash petition cannot be entertained at this stage and this Court is not inclined to quash the proceedings on the file of Additional Chief Metropolitan Magistrate, Egmore (E.O-II), Allikulam Road, Chennai. The petitioner is at liberty to raise all the grounds before the trial Court. The personal appearance of the petitioner is dispensed with and she shall be represented by a counsel after filing appropriate application.
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2020 (7) TMI 648
Nature of expenditure - expenses on use of computer software - revenue or capital expenditure - HELD THAT:- Since the amount is paid on the basis of actual use of software and not for acquisition of software, there was no question of treating the said expenses as capital expenditure. Therefore, Tribunal held that the authorities below had wrongly held the software payment to be capital expenditure in nature and accordingly upheld the stand taken by the assessee directing the Assessing Officer to treat the software expenses as revenue expenditure. While holding so, the Tribunal considered the views given by the Dispute Resolution Panel (DRP) as well as of the Special Bench decision of the Tribunal in the case of Amway India Enterprises Vs. DCIT [ 2008 (2) TMI 454 - ITAT DELHI-C] . There is no error or infirmity in the conclusions reached by the Tribunal - No substantial question of law. Expenses pertains to legal expenses in connection with structuring of the transaction and related aspects - HELD THAT:- Tribunal has taken the view that merely because the transaction in question is a capital asset, the legal expenses incurred for the same will not ipso facto become capital expenditure. While taking the above view, Tribunal referred to a decision of the Madras High Court in the case of CIT Vs. Bush Boake Allen India Ltd. [ 1981 (10) TMI 32 - MADRAS HIGH COURT] in which followed the decision of India Cements Ltd. Vs. CIT [ 1965 (12) TMI 22 - SUPREME COURT] . No error or infirmity in the view taken by the Tribunal and no question of law arises therefrom.
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2020 (7) TMI 647
Block Assessment Order u/s 158BC r/w Section 158BD - assessment barred by limitation as per Section 158BE (1)(b) - no notice u/s 143(2) which is mandatorily to be issued even in respect of 158BC proceedings, had been issued - HELD THAT:- Allegation that a notice u/s 143(2) was not issued and that a notice u/s 142(1) only was issued is not correct since the notices u/s 143(2) and 142(1) were issued on the same date (6.6.2003) and also served on the same date (10.6.2003). In the above assessment order, the Assessing Officer was mentioning the reason why the notice u/s 142(1) was issued only on 6.6.2003 whereas the petitioner attempts to read the word only in connection with the words notice u/s 142(1) to present as if only the notice u/s 142(1) was issued. This is not correct and the petitioner is well aware of the same. The allegation that no notice u/s 143(2) was issued and that the petitioner represented his case before the first respondent only on the basis of oral requirement is factually incorrect. The allegation that adequate opportunity was not given to the petitioner before the completion of the block assessment is factually incorrect since the case was discussed with the petitioner and his representatives on as much as six occasions. Block Assessment Orders as barred by limitation - Search operation commences at the second premises of the petitioner on 25.01.2001, continued till 12.06.2001, therefore each time separate panchanamas were drawn and prohibitory orders were issued with the endorsement that, search continues . However it has been misquoted by the petitioner that, even though the panchanama, dated 25.01.2001 discloses with an endorsement of the Revenue that, the search concluded , subsequent issuance of prohibitory order and on that strength, subsequent searches made till 12.06.2001 was unauthorised - in the second premises the search continued and in view of the specific provisions referred to above in Section 132(1)(iib), which, even though came into effect only from 01.06.2002, the continuous search went up to 12.06.2001 can very well said to be authorised and therefore the Revenue cannot be found fault with by compelling them to calculate the limitation within the meaning of Section 158BE(1)(b) from 01.02.2001 by taking into account the panchanama, dated 25.01.2001 as the last panchanama and by not taking the 12.06.2001 panchanama as the last panchanama. Therefore independently, on the basis of Section 132(1)(iib), the Revenue's continuous search operation taken place on various dates from 25.01.2001 till 12.06.2001 can very well be construed as an authorised search operation, therefore the panchanama issued on 12.06.2001 shall be deemed to be the last authorisation within the meaning of Explanation 2 to Section 158BE. If that being the position, the impugned Block Assessment Order, dated 30.06.2003 is within the limitation of two years under Section 158BE(1)(b) commencing from 01.07.2001 since the end of the month in which the last of authorisation for search under Section 132 was to be reckoned only as 30.06.2001. Ground raised by the petitioner side in the context of Section 158BE(1)(b) to state that, the impugned order is barred by limitation, is unsustainable. Block Assessment Order, dated 30.06.2003 cannot be said to be defective for want of limitation, within the meaning of Section 158BE(1)(b) of the Act and also the other reasons and grounds urged by the petitioner side since cannot be said to be the advancing factor of the petitioner's case, this Court feel that, the impugned order can very well be sustained, that means, on the grounds urged by the petitioner, it cannot be successfully assailed.
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2020 (7) TMI 646
Offences u/s 276C(2) and 278B - allegation against the Petitioners is that they wilfully concealed the short term capital gains and long term capital gains and that the Petitioners, finding that the documents are necessary to bring out facts and to bring out the inference that the Petitioners did not have wilful intention or mens rea to conceal the income - HELD THAT:- Petition under Section 391 of Cr.PC had been filed by the Petitioners even at the time of presentation of the appeal. These documents sought to be marked as additional evidence are not new documents and they are documents relating to filing of returns with the Respondent in respect of earlier years and the copies of which are also available with the Respondent. By marking of these documents, the nature or course of the case will not be altered. The documents have not been produced before the Trial Court due to inefficiency or inadvertence of the person who conducted the case. Where the documents were left out to be marked due to carelessness and ignorance, it could be allowed to be marked for elucidation of truth, in the interest of justice, by exercising powers u/s 391 of Cr.PC. The intention of Section 391 of Cr.PC is to empower the Appellate Court to see that the justice is done between the prosecutor and the prosecuted in the interest of justice. This Court is of the opinion that the Petitioners should be allowed to let in additional evidence subject to provisions of Chapter XXIII of Cr.PC in the presence of the Respondent/ complainant and his counsel. Criminal Revision Petition is allowed.
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2020 (7) TMI 645
TP Adjustment - working capital adjustment - HELD THAT:- TPO in the instant case, without verification of the working submitted by the assessee at the time of hearing, simply disallowed the same, therefore, considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore this issue to the file of the TPO with a direction to verify the working capital adjustment, the details of which has been given by the assessee and allow appropriate working capital adjustment to the assessee after due verification of the same. The ground raised by the Revenue is accordingly allowed for statistical purposes. Comparable selection - rejection of HCL Technologies Ltd. and HP Globalsoft Ltd. on account of substantial RPT - HELD THAT:- We find HCL Technologies Ltd. has got RPT of 71.09% and HP Global Soft Ltd., has got 87.44% RPT. Although the TPO at page 5 of the order has mentioned that the objection of the assessee regarding related party transactions were not substantiated with any account details, however, from the details furnished by the assessee in we find the assessee had categorically mentioned before the TPO regarding substantial RPT. It has been held in the case of Agilant Technologies International (P) Ltd [ 2013 (7) TMI 843 - ITAT DELHI ] that a potential comparable having more than 25% of the related party transactions is to be ignored. The Delhi Bench of the Tribunal in the case of Nokia India Pvt. Ltd. vs. DCIT [ 2014 (11) TMI 101 - ITAT DELHI ] has also taken a similar view. Under these circumstances, we do not find any infirmity in the order of the CIT(A) in directing the TPO/AO to exclude the above two comparables on account of huge related party transactions. Exclude Satyam Computer Services Ltd., from the list of comparables as the financial results of the said company is the result of admitted financial irregularities and conspiracy hatched and committed by the directors and cannot be relied upon. Depreciation on computer peripherals @ 60% - Hon ble Delhi High Court in the case of CIT vs. BSES Yamuna Power Ltd, [ 2010 (8) TMI 58 - DELHI HIGH COURT ] has held that computer accessories and peripherals being an integral part of computer system are eligible for depreciation at a higher rate of 60%. The various other decisions placed in the paper book filed by the assessee also support the case that computer peripherals being an integral part of computer systems are eligible for depreciation at a higher rate of 60%. Nature of expenditure - software upgradation expenses - revenue or capital expenditure - HELD THAT:- Expenses are incurred for up-gradation of software which was not customized software. They were general software available off the shelf. In view of this, following the decision of the jurisdictional High Court, the AO is directed to allow the expenses. CIT(A), while deleting the disallowance made by the AO has followed the decision of the Hon ble Delhi High Court in the case of CIT vs. G.E. Capital Services Ltd.,[ 2007 (7) TMI 185 - DELHI HIGH COURT ]. DR could not bring any fresh material so as to take a contrary view than the view taken by the Hon ble Delhi High Court which has been followed by the ld.CIT(A).
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2020 (7) TMI 644
Income accrued in India - Royalty receipt - revenues under the IDC agreement - India-Singapore DTAA - HELD THAT:- We find that in the instant case, appellant only provides service by using its hardware/security devices/personnel and not use of any software - the appellant is only providing IDC service which includes administration and supervision of central infrastructure, mailbox hosting services and website hosting services. From the enunciation of law in Bharati Axa General Insurance Co. Ltd [ 2010 (8) TMI 8 - AUTHORITY FOR ADVANCE RULINGS ], ExxonMobil Company India (P.) Ltd [ 2018 (3) TMI 938 - ITAT MUMBAI ], Standard Chartered Bank v. DDIT [ 2011 (5) TMI 580 - ITAT, MUMBAI ], DCIT v. M/s Reliance Jio Infocomm Ltd [ 2019 (6) TMI 532 - ITAT MUMBAI ] narrated hereinbefore, it is quite luculent that revenues under the IDC agreement ought not to be taxed in the hands of the appellant as royalty under the Act and/or India-Singapore DTAA. Therefore, we delete the addition made by the AO towards IDC charges and allow ground of appeal of assessee. Claim of management service fees made by the appellant as non-taxable - HELD THAT:- We find that the services provided under the management agreement broadly include (i) consultancy services to support the sales activities of Surf Gold, (ii) legal services, (iii) financial advisory services and (iv) human resource assistance. There is no dispute here that under the provisions of section 9(1)(vii) of the Act, rendering of management services will be taxable as FTS. However, Edenred, by virtue of section 90(2) of the Act, is eligible to rely on the provisions of the India-Singapore DTAA, should the same be more beneficial than the provisions of the Act. In this regard, we fruitfully rely on the judgment in the case of New Skies Satellite BV Ors [ 2016 (2) TMI 415 - DELHI HIGH COURT ] wherein it is held that provisions of DTAA shall prevail over the provisions of the Act, if they more beneficial. As per the India-Singapore DTAA, the services in the nature of managerial, technical or consultancy nature are taxable as FTS if such services are made available to the service recipient. We find that in the instant case, the management services are provided only to support SurfGold in carrying on its business efficiently and running the business in line with the business model, policies and best practices followed by the Edenred group. These services do not make available any technical knowledge, skill, knowhow or processes to SurfGold. Therefore, we delete the addition made by the AO towards management services fees and allow ground of appeal of assessee. Claim of referral fees as non-taxable - India-Singapore DTAA -HELD THAT:- It is relevant to mention here that as per the India-Singapore DTAA, the services in the nature of managerial, technical or consultancy nature are taxable as FTS, if such services are made available to the service recipient. In the instant case, referral services/other services are provided to support Surf Gold in carrying on its business. These services do not make available any technical knowledge, skill, knowhow or processes to SurfGold because there is no transmission of the technical knowledge, experience, skill etc. from the appellant to SurfGold or its clients. The revenues under the referral agreement is not taxable in the hands of the appellant as royalty under the Act and/or India-Singapore DTAA or FTS under the India-Singapore DTAA. Addition to be deleted. Non granting credit for TDS - AO has not granted credit of TDS while computing the net tax liability under the Act while issuing the final assessment order post DRP directions - HELD THAT:- As the appellant has filed a rectification application before the AO, which is still pending for disposal. We direct the AO to grant credit of TDS to the appellant after due verification. Levy of interest u/s 234A - Compute consequential as per law after granting TDS credit due to the appellant. Levying interest u/s 234B and interest u/s 234C - HELD THAT:- As we have decided that the revenues from IDC agreement, management agreement and referral agreement are not taxable in India and therefore, the appellant is not liable to pay advance taxes. Accordingly, the levy of interest made by the AO u/s 234B is deleted.
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2020 (7) TMI 643
Assessee in Default for non deduction of TDS - Validity of order u/s 201(1) and 201(1A) - period of limitation - HELD THAT:- As decided in TATA TELESERVICES VERSUS UNION OF INDIA 1 [ 2016 (2) TMI 414 - GUJARAT HIGH COURT] section 201(3) has amended by Finance Act No. 2 of 2014 shall not be applicable retrospectively and therefore, no order u/s 201(1) could be passed for which limitation had already expired prior to amended section 201(3) as amended Finance Act 3 of 2014 came into force. In the present case order should have been passed before two years from the end of the financial year in which the statement [ TDS Statements] are filed or four years from the end of the financial year in which payment is made - statement of TDS was required to be filed on or before 30.06.2009 and therefore, the time limit as per the 201(3)(i) expires by 31.03.2012. Further as per 201(3)(ii) such time limit expires on 31.03.2013 - that to the assessee the time limit prescribed u/s 201(3)(i) applies as assessee has filed its statement of TDS. Therefore, as the impugned order is passed on 29.03.2016, it is barred by limitation. - Decided in favour of assessee.
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2020 (7) TMI 642
Rectification u/s 154 - appellant had sold a fixed asset on which a profit had arisen on account of sale of the show-room AND as explained that as per the provisions of the Act, the block of asset of the office premises had not ceased to exist and accordingly the provisions of section 50 were not applicable in terms of tax liability on STCG - profit on sale of show-room remained to be reduced while computing the profits u/s 115JB - HELD THAT:- The power of rectification u/s 154 of the Act can be exercised only if there is a mistake apparent from the record of the assessment of the assessee. In the instant case, the mistake as pointed out by the Ld. counsel is not apparent on the record; not obvious and patent mistake. In the instant case, the mistakes can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. In the instant case, the mistakes pointed out by the Ld counsel are rather debatable. Thus the ratio laid down by the Hon ble Supreme Court in Volkart Bros [ 1971 (8) TMI 3 - SUPREME COURT] is squarely applicable here. In view of the above factual scenario and position of law, we uphold the order of the Ld. CIT(A).
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2020 (7) TMI 641
Exemption u/s 11 and 12 - Charitable activity u/s 2(15) - activities of the appellant, i.e. holding of matches, sale of match tickets, receipt from booking of corporate boxes by companies, receipt of IPL subvention from BCCI, income from club facilities, receipt from sponsors etc - whether activities of the appellant, i.e. holding of matches, sale of match tickets, receipt from booking of corporate boxes by companies, receipt of IPL subvention from BCCI, income from club facilities, receipt from sponsors etc,services in respect of Indian Premier League cricket (IPL) by the appellant is a business activity and hence it not eligible for exemption u/s 11 12? - HELD THAT:- in view of the provisions of Section115TD of the Act, the accreted income of the assessee due to the exemption, if any, granted to the assessee in earlier years become taxable in view of the amended objects of the assessee, hence, even if the claim of exemption is allowed to the assessee for the assessment years under consideration that will not serve any useful purpose as the assessee in the subsequent years will be liable to pay tax on such accreted income. Double taxation of income in the hands of BCCI and Assessee, as the member of AOP - Held that:- As decided in [ 2019 (9) TMI 681 - ITAT CHANDIGARH ] amount paid by the BCCI to the appellant which has already been taxed at the hands of BCCI, cannot be now taxed in the hands of the member of the AOP i.e. the appellant State Association as it will amount to double taxation of the same amount. if the claim of the BCCI for treating the payments made to the State Association as deductible expenditure is accepted by any higher appellate authority in its case for the year under consideration, it will be open to the assessing officer of the appellant to reopen the case of the appellant and to decide whether the said payments received from BCCI can be taxed as income of the appellant which will be subject to our observations given on other issues raised in this appeal - income received by the appellant/assessee otherwise, except the club income, which has not been taxed at the hands of the BCCI, will be assessed as per the normal provisions of the Act. So far as the income from club facilities and from caterer this issue is required to be re-examined by the Assessing officer after verification of the accounts of the assessee as to ascertain which part of the club income and catering services has been generated from the members of the assessee association and which part of the income is earned from non-members. It is also to be looked into whether the income from the club house and other facilities is generated generally from the members only and the receipt from the non-members is an exception or the income is generated from members and non-members in normal course of business. Whether the catering services are limited to the members and their guests only or the same are also provided to non-members also on commercial basis. The Assessing officer after thoroughly examining the above facts will decide if the principle of mutuality applies to the club income including catering contract in accordance with law. This issue is accordingly restored to the file of the Assessing officer. The findings / directions as given vide order dated 12.09.2019 (supra), will be applied accordingly in the captioned appeals. Appeals of the assessee partly allowed for statistical purposes.
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2020 (7) TMI 640
Royalty receipt - revenue earned by the Appellant from sale of hardware equipment - addition as per section 9(1)( vi) of the Act and Article 12(3) of the India-Switzerland Double Taxation Avoidance Agreement (India-Swiss tax treaty') - Whether revenue earned by the Appellant from sale of hardware equipment represents business income, which is not taxable in India in the absence of any Permanent Establishment ( PE') of the Appellant in India? - HELD THAT:- It is an admitted fact that though Explanation 5 has been inserted in section 9(1)(vi) of the Act but no amendment has been made to the definition of Royalty under DTAA and since the provisions of DTAA are beneficial to the assessee, then the said provisions would be applied. What has been transferred is limited right to use copyrighted material, then the receipts on sale of licensing of software is not Royalty in view of the beneficial provisions of the DTAA between India and Sweden - Amended definition of Royalty under the domestic law cannot be extended to the definition of Royalty under DTAA, where the term Royalty originally defined has not been amended. As per definition of Royalty under DTAA, it is payment received in consideration for use or right to use any copyright of literary, artistic or scientific work, etc.; thus, purchase of copyrighted article does not fall in realm of Royalty . We also hold that since the provisions of DTAA overrides the provisions of Income Tax Act and are more beneficial and the definition of Royalty having not undergone any amendment in Tax Treaty, the assessee was not liable to be taxed on aforesaid receipts of Licensing software and also on sale of Hardware. - Decided in favour of assessee.
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Customs
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2020 (7) TMI 639
Release of seized goods - raid - handling of illegally imported gold - HELD THAT:- The writ petition is disposed off with a direction to the respondent to decide application Ext.P4 for provisional release of the gold seized vide Ext.P2 in accordance with law after affording an opportunity of hearing to the petitioner and as well as custom officials. Let the decision be taken within a period of one month from the receipt of the copy of this judgment.
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Service Tax
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2020 (7) TMI 638
Imposition of penalty u/s 76 and 78 of FA - Non-payment of service tax - Business Auxiliary Services - appellant is incurring commission amount for payment to the selling agents located outside India - period June 2005 to March 2009 - demand paid on being pointed out, before issuance of SCN - Revenue Neutrality - HELD THAT:- The applicability of service tax on commission amount paid to the service provider located outside India is not in dispute. The assessee has already deposited the service tax with applicable interest well before the issue of SCN - also, the levy of service tax on services received from outside India was a new concept and the same was made applicable only w.e.f. April 2006. There was an ignorance on the part of the assessees regarding the service tax liability on import of services from outside India. The appellant herein immediately discharged payment of service tax on being pointed out without disputing the tax liability. Revenue Neutrality - HELD THAT:- The service tax amount if paid would have been available as credit or refund since the same has been used in making export of goods and the situation would have been revenue neutral. Penalty set aside - other part of demand upheld - appeal allowed in part.
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Central Excise
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2020 (7) TMI 637
Refund of Excise Duty - Area Based Exemption - It is the case of the petitioner that there was an application of the petitioner dated 27.05.2008 claiming that under the notification in force, the petitioner is entitled to an exemption/refund from excise duty up to 65% and thereafter several other applications were submitted to the department by the petitioner on the same claim but in respect of other assessment years - HELD THAT:- The respondents are directed in the Excise Department to give a consideration to on the applications of the petitioner and pass reasoned orders on the same. The requirement of passing the reasoned order be done within a period of three months from the date of receipt of a certified copy of this order. Further, till such consideration are made and the reasoned orders passed, the authorities in the Excise department shall not encash the bank guarantee given by the petitioner in respect of 100% of the excise duty paid by them. Petition disposed off.
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Indian Laws
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2020 (7) TMI 636
Cancellation of promotion demoting the petitioner from the post of Assistant Commissioner of Taxes to the Superintendent of Taxes - gross irregularity in refund/adjustment of additional security deposited by five(5) number of coal dealers - HELD THAT:- In the present case in hand, it has been held that the inquiry report holding the charges against the petitioner as proved to be perverse as the same is without any evidence. The penalty was imposed on the basis of the said inquiry report which is also liable to be set aside alongwith the order passed in the appeal. Once the said order including the inquiry report are set aside and quashed, the question of imposition of penalty on the petitioner does not arise. Admittedly the petitioner was due to be promoted which was accordingly done and subsequently the said order was cancelled due to the imposition of the minor penalty of withholding of 2(two) increments with cumulative effect. As the order imposing penalty is liable to set aside accordingly, the cancellation order is also liable to be set aside as there is no dispute at bar that the promotion of the petitioner was due at that relevant point of time. I refrain myself from further considering the submissions of the learned counsel as sufficient materials like the date on which the Departmental Promotion Committee met and the period of consideration zone of the officers and whether, the same covered the period of the allegations forming the charges for which the petitioner was imposed the penalty etc are not on record. The inquiry report dated 25.1.2010 is held to be perverse, set aside and quashed - Petition allowed.
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