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Newsletter: Where Service Meets Reader Approval. TMI Tax Updates - e-Newsletter August 10, 2015 Case Laws in this Newsletter: Income Tax Customs Corporate Laws Service Tax Central Excise CST, VAT & Sales Tax Wealth tax TMI SMS Obligation to furnish statement of financial transaction or reportable account u/s 285BA / FATCA Agreement - Detailed Rules notified TDS deducted at lower rate u/s 194C instead of u/s 194J on professional fee will not save an assessee from disallowance u/s 40(a)(ia) - HC Articles CONTRACT WORKMEN ARE TO BE INCLUDED AS EMPLOYEES OF THE ASSESSEE UNDER (erstwhile) SECTION 80-IA(2)(4) OF INCOME TAX ACT, 1961 News National Spot Exchange Ltd. (NSEL) and Financial Technologies India Ltd. (FTIL) Non-Comliance of Companies Act Notifications Income Tax 62/2015 - dated 7-8-2015 - IT Income–tax (11th Amendment) Rules, 2015 Highlights / Catch Notes Income Tax Obligation to furnish statement of financial transaction or reportable account u/s 285BA and FATCA Agreement - Procedures and Manner and Conditions notified - Income–tax (11th Amendment) Rules, 2015 - Notification Visit to Get Source Reassessment - Once we have held that a valid notice u/s 148 had been issued, it is open to the assessee to raise this objection before AO, as to whether the original assessment proceeding for the assessment year 2008-09 are pending or not and whether a valid notice u/s 142(1) has been issued - HC Visit to Get Source Disallowance under section 36(1)(iii) - There is no justification either for the assessee or for the department to take into consideration the rate of interest in respect of a particular advance or advances to the assessee. The only logical approach is to take into consideration the average interest rate at which the assessee has availed of the advances. - HC Visit to Get Source The order of the Tribunal thus suffers from patent perversity by not taking into account the cumulative factors which are in favour of the assessee and by confirming the additions made against the assessee and accepting the statement of the commission agent as gospel truth. - HC Visit to Get Source Eligibility of depreciation claim - depreciation which the assessee was not desirous of claiming cannot be foisted on him - HC Visit to Get Source TDS deducted at lower rate u/s 194C instead of u/s 194J on professional fee - deduction under a wrong provision of law will not save an assessee from disallowance u/s Section 40(a)(ia) - HC Visit to Get Source Validity of reopening of assessment - AO has rightly initiated the reassessment proceedings after recording the reasons for his own belief that in the original assessment proceedings, the assessee had not disclosed the material facts truly and fully and therefore income chargeable to tax had escaped assessment. - HC Visit to Get Source Exemption from capital gains u/s 54F - merely because the construction was not complete in all respects or such building is yet to be completed fully or the building not being in a fit condition for being occupied, would by itself not be a ground for the assessee to be denied the benefit under Section 54F of the Act. - HC Visit to Get Source Validity of reopening of assessment - Once the AO accepts that the facts required payment of higher brokerage and it is not disputed that the transaction of brokerage was through banking channel, reduction of allowance of brokerage paid from 10% to 5%, without assigning or giving any reasons for the same, cannot be justified in la - HC Visit to Get Source Computation of capital gain - claim of expenses u/s 48 - the amount paid by the appellant to the Bank for discharge of the mortgage has to be taken as expenses relating to transfer and it is wholly and exclusively incurred for the transfer u/s 50 of the Income Tax Act, 1961 - HC Visit to Get Source Validity of proceedings initiated under s. 158BD - certain amount of estimation is permissible and this has been recognized - HC Visit to Get Source Eligibility for claiming deduction u/s. 80IB(10) - 5 units were left out to make space for construction of septic tank. The non-construction of 9 units, in our considered view will not render 204 completed units in-eligible for the claim of deduction u/s. 80IB(10) - deduction allowed - AT Visit to Get Source Customs Refund of terminal excise duty already paid – When supplies were made against ICB, TED was exempted – Respondent failed to avail exemption for supplies - TED was paid by availing CENVAT Credit Account - DGFT directed to consider the refund application - HC Visit to Get Source Import of wine products - Refusal of NOC – As per Regulation 3.1.12, Tartaric Acid finds specific mention and can be added as acidulant provided maximum level of use was 600 ppm – Thus Tartaric and Ascorbic Acid was permitted food additive which can be added to alcoholic wines - HC Visit to Get Source Corporate Law Manipulative, fraudulent and unfair trade practices – Circular trading – not in dispute that six clients of Appellant acted in collusion amongst each other in synchronized / circular / reversal manner, thereby artificially increased volume / price of GIL scrip - appellant cannot escape liability - SAT Visit to Get Source Service Tax Availability of Cenvat Credit of Service Tax paid on Exempted Services of Job work - Notification No. 8 of 2005 is a conditional notification and Section 5A(1A) of Central Excise Act, 1944, is not-applicable to the present case - credit allowed - HC Visit to Get Source Activity of chilling of milk - Business Auxiliary Service - appellant has made out a good case for waiver of pre-deposit - AT Visit to Get Source GTA services - Payment of freight - liability to discharge service tax burden is on supplier of goods or purchases to goods - lower authorities to re-verify the facts and evidences - AT Visit to Get Source Imposition of penalties u/s 76, 77 and 78 - Service tax payment on reverse charge basis is available as Cenvat Credit - In a Revenue neutral situation no intention to evade payment of service tax can be attributed on the part of appellant - No penalty to be levied - AT Visit to Get Source Central Excise 100% EOU - debonding - DTA sales made by the appellant against advance DTA permission - appellant is not able to fulfill the Condition No.II attached to the Notification No.23/03-CE - demand invoking the extended period of limitation confirmed - AT Visit to Get Source Valuation - Related person - only holding of share of 50% and selling of entire production by the appellants to M/s ITL is not enough to prove the mutuality of interest in the business of each other - AT Visit to Get Source Manufacture - Classification of Hajmola, Imli - Process undertaken to produce tamarind concentrate/ paste does not produce any chemical change and the product at the starting point and at the end of the remains the same, but for formation of pulp and removal of added water/moisture - No Manufacturing activity - AT Visit to Get Source Area based exemption - prior to January 2008 on the ground that the appellant has not opted for exemption - when the allegation of suppression has been dropped against the appellant, the appellant is entitled for benefit of exemption Notification No. 50/2003-CE during the impugned period also - AT Visit to Get Source Maintainablity of appeal - Revenue had not complied with the provisions of Section 35B(2) of The Central Excise Act, 1944 - Approval from Committee of Commissioners - As no such direction was produced, the appeal was dismissed - HC Visit to Get Source Recovery of dues from the successor - Liability of Purchaser of property for which dues were pending - where the buyer purchases the entire business only then he was liable for Central Excise Duty and not otherwise - HC Visit to Get Source Case Laws: Income Tax 2015 (8) TMI 307 Revision proceedings u/s. 263 - the assessee had claimed set off of carried forward un-absorbed depreciation relating to assessment year 1999-2000 against the income in the financial year 2007-08, which was not allowable as the same had to be dealt with in line with the provisions of section 32(2) of the Act, applicable to the said year - Held that:- Applying the ratio laid down by the Hon’ble Gujarat High Court in General Motors India Pvt. Ltd. Vs. DCIT (2012 (8) TMI 714 - GUJARAT HIGH COURT ) to the facts of the present case, the issue of allowability of unabsorbed depreciation relating assessment year 1999-2000 against the income arising in assessment year 2008-09 is to be set off and consequently, the order passed by the Assessing Officer in this regard cannot be said to be prejudicial to the interest of Revenue. Consequently, the revisionary powers exercised by the Commissioner against the order of assessment which is not prejudicial to the interest of Revenue, even where the order passed by the Assessing Officer was erroneous, cannot be exercised, since the twin conditions have not been fulfilled in the case. In view thereof, we reverse the directions of the Commissioner in this regard and uphold the order of Assessing Officer in allowing the set off of unabsorbed depreciation relating to assessment year 1999-2000 amounting to ₹ 5,41,84,430/- claimed against the business income for assessment year 2008-09 in computation of income. The directions of the Commissioner in this regard are thus, reversed and the order of Assessing Officer is restored. We find merit in the alternate plea raised by the assessee that in view of the information being available on record though in the proceedings under section 154 of the Act, the Commissioner could not exercise the jurisdiction under section 263 of the Act. We set-aside the order of Commissioner on this ground also. - Decided in favour of assessee. Proceedings under section 263 in relation to the management / license fees paid - The said issue was restored back to the file of Assessing Officer to decide the same after verifying the submissions of the assessee and due verification of the books of account and other details - The learned Authorized Representative for the assessee pointed out that in the set-aside proceedings, the Assessing Officer had allowed the claim of the assessee in the order passed under section 143(3) r.w.s. 263 of the Act and no addition has been made on this account. In view of the order of Assessing Officer in allowing the claim of assessee in set-aside proceedings and passing the order under section 143(3) r.w.s. 263 of the Act, the issue raised in the present appeal against the exercise of jurisdiction of Commissioner under section 263 of the Act has become infructuous and the same is dismissed. - Decided in favour of assessee. 2015 (8) TMI 284 Validity of reopening of assessment - no proper service under Section 148 read with Section 282 along with Order V Rule 17 and Order V Rule 18 of the Code of Civil Procedure - Held that:- Order V Rule 17 clearly indicates that when the notice cannot be served, the serving officer shall affix the copy of the summons on the outer door or at some other conspicuous part of the house in which the petitioner ordinarily resides or carries on business. In the instant case, the Inspector's report clearly indicates that the petitioner personally refused and thereafter the notice was affixed at the outer door of his clinic. The contention that the service was not made at his residence, but at his clinic is immaterial. The fact remains, that the service was made at his business place and that the petitioner himself refused to accept the notice. The Inspector's report also indicates the time and manner of service which is in compliance with the Order V Rule 18 of the C.P.C. In the light of the aforesaid, we are of the opinion, that the service of the notice under Section 148 of the Act was validly made. Once we have held that a valid notice under Section 148 of the Act had been issued, it is open to the petitioner to raise this objection before the assessing authority, as to whether the original assessment proceeding for the assessment year 2008-09 are pending or not and whether a valid notice under Section 142(1) of the Act has been issued. If such objections are filed, the assessing authority will consider the same while making the re-assessment order under Section 148 of the Act. - Decided against assessee. 2015 (8) TMI 283 Disallowance under section 36(1)(iii) - ITAT directing the AO to recompute the disallowance adopting the average cost of debt for the year - Held that:- As rightly held by the Tribunal, the judgment of this Court in Commissioner of Income Tax-I, Ludhiana vs. M/s Abhishek Industries, Ludhiana (2006 (8) TMI 123 - PUNJAB AND HARYANA High Court )as relied upon by AO does not deal with the question of the rate of interest to be applied in cases where the assessee has mixed funds available with it. We agree with the Tribunal's view that where mixed funds are diverted towards interest free advances the disallowance should be made up to the level of the average cost of debt to the assessee. There is no justification in taking into consideration the rate of interest in respect of any particular transaction whereunder an assessee avails advances on interest. An assessee may avail several advances from the same lender or from different lenders and at varying rates of interest. In the absence of anything to indicate that the interest free advance was made only from a particular corresponding advance received by the assessee, the advance made by the assessee would obviously be from the common pool of money. Money lying in a common pool has no identity. The various amounts advanced to the assessee get merged into a common pool. There is no justification then either for the assessee or for the department to take into consideration the rate of interest in respect of a particular advance or advances to the assessee. The only logical approach is to take into consideration the average interest rate at which the assessee has availed of the advances. - Decided in favour of assessee. 2015 (8) TMI 282 Assessment of cash balance recovered at the time of search - assessment confirmed by the Tribunal rejecting the case of the assessee that the manager of his brother, who is the proprietor of a Jewellery shop, had handed over the above amount on the day previous to the search - Held that:- This was rightly rejected stating that a search was simultaneously conducted in the premises of the brother of the assessee and that nothing was recovered evidencing the payment claimed by the assessee and that the assessee also had not maintained any books of accounts evidencing the receipt of the amount. Unexplained investment in gold biscuits - Held that:- Admittedly, during the search, 18 gold biscuits worth ₹ 9,36,000/- were recovered. The assessee surrendered a sum of ₹ 4,66,000/- as his undisclosed income. In so far as the balance amount of ₹ 4,70,000/- is concerned, the assessee claimed that the said amount was received from his brother and his brother's source of payment was explained by stating that his brother had withdrawn ₹ 3 lakhs from his Jewellery shop and the balance of ₹ 1.70 lakhs was realised by sale of his wife's jewellery. This contention of the assessee was rejected by all authorities stating that the assessee did not maintain any books of accounts regarding receipt of ₹ 4.70 lakhs from his brother. The assessee did not also having any sales tax registration and there was nothing to connect the unexplained investment of ₹ 4.70 lakhs was that of his brother, or the sale of jewellery. Excess expenditure over receipts - Held that:- During the search, a note book containing the cash transaction between 03.09.2000 to 14.11.2000 was recovered, which showed receipts to the tune of ₹ 73,345/- and total expenditure of ₹ 7,02,227/-. The claim of the assessee was that the excess amount represented his agricultural income. However, he did not furnish any material to substantiate the receipt of agricultural income and no material regarding the agricultural income was also available. Excess amount of ₹ 6,28,882/- should be treated as loss from business contention was rightly rejected by the Tribunal stating that an amount assessed as investment from undisclosed source cannot be treated as loss from business. Contention raised by the assessee was that the income determined for the assessment year 1994-1995 to 1999-2000 after giving effect to the order of the CIT(A) was less than the non-taxable limit in each of the assessment years and therefore are liable to be excluded from undisclosed income was also rejected by the Tribunal referring to Sec.158BB (1)(c) of the Act. - Decided against assessee. 2015 (8) TMI 281 Disallowance of interest on borrowed capital u/s 36(1)(iii) - ITAT confirming the order of the CIT(A) in directing to allow the claim - Held that:- It was not the case of the revenue that the finding of the Commissioner of Income Tax (Appeals) that the borrowed money was utilized for the purpose of business, is not correct and/or perverse. Similarly, in the present appeal challenging the impugned order of the Tribunal no ground challenging the factual finding of the activities has been urged in the appeal memo. It is not open to the revenue to urge investigation into facts which were not disputed by it before the Tribunal or even when the memo of appeal filed in 2008 in this Court. The jurisdiction under Section 260A of the Act is to entertain substantial questions of law arising in the case. In the present facts, both the Commissioner of Income Tax (Appeals) as well as the Tribunal, have reached a finding of fact that the interest was paid on amounts borrowed and used for the purposes of business. The issue stands covered by virtue of a decision of Core Health Club Ltd., (2008 (2) TMI 8 - SUPREME COURT OF INDIA ). The decision cited by Mr. Chhotaray in the case of Challapalli Sugars Ltd. (1974 (10) TMI 3 - SUPREME Court) would have no application to the present facts. In this case there is concurrent finding of fact that the amounts have been utilized in the carrying on business and one of the business carried out by the respondent-assessee was that of a Estate Agent. - Decided against revenue. 2015 (8) TMI 280 Income from undisclosed sources - addition on account of the cash deposits of ₹ 7,23,000/- in the savings account of the assessee - non-confirmation of the sales from the commission agent, the liability was fastened upon the assessee by issuing notice under Section 148 - Held that:- The onus of proof was wrongly put upon the assessee mainly because of cash deposits of ₹ 7,23,000/-, which have been now added to his income as income from undisclosed sources. The assessee was never given a proper opportunity to cross examine or rebut the stand of the commission agent who was at that point of time was on the receiving end of the department since an inquiry was being made against him as to how he had made cash payments of such huge amount which had not been reflected in the account books. The order of the Tribunal thus suffers from patent perversity by not taking into account the cumulative factors which are in favour of the assessee and by confirming the additions made against the assessee and accepting the statement of the commission agent as gospel truth. Merely because the appellant was a retired employee and filed his return showing agricultural income admittedly being a owner of agricultural land, the assessing officer was not justified in making the additions on the assumption that the assessee had tried to include his past savings and unaccounted money in the agricultural income. The said finding was totally conjectural and without any basis which further was wrongly upheld by the Commissioner of Income Tax and only partial relief was granted by the Tribunal. Accordingly, the question of law framed is answered in favour of the appellant. The appeal is allowed and the addition of ₹ 7,23,000/- sustained by the Tribunal on account of income from undisclosed sources is set aside - Decided in favour of assessee. 2015 (8) TMI 279 Accruals of interest and rental income returned as income from other sources as provided under Section 56 - since the subsidiary company was incurring huge losses, the assessee had written off interest and lease charges and claimed its deduction in the assessment year 2008-209 and as AO considered the said claim under Section 57(iii) of the Act and disallowed the deduction - Held that:- The income in question was returned as income from other sources. When an income has been returned as income from other sources, one of the heads of income provided in Section 40, deduction can also be only under the provisions in the same head of income. Therefore, in respect of income from other sources, deduction of income is permissible only under Section 57, sub section (iii) of which provides for deduction of any other expenditure (not being in the nature of capital expenditure) laid out or expended wholly or exclusively for the purpose of making or earning such income. Evidently, this provision is not attracted in the case in question and, therefore, the Assessing Officer has rightly declined the claims of the assessee.- Decided against assessee. Entitlement to claim deduction under Section 36(vii) - Held that:- In so far as this claim of the appellant is concerned, first of all, such a contention was not raised before any of the lower authorities. Not only that, as rightly pointed out by the learned Senior Counsel for the Revenue deduction under Section 36 is permissible only in so far as the income under the head 'profits and gains of business or profession'. Therefore, this claim of the assessee also cannot be sustained. We do not find anything illegal in the conclusions of the Tribunal. - Decided against assessee. 2015 (8) TMI 278 Eligibility of depreciation claim - whether the Tribunal right in holding that no depreciation can be thrust upon in this case, though the assessee has not forgone its right to claim depreciation in case of positive income and ought to have upheld that depreciation need to be worked out even in the cases where deduction under Chapter VI A is not claimed/allowed because of paucity of profits? - Held that:- No substance in this appeal and the questions framed for our consideration are answered in the negative. We hold that it is optional for the assessee whether or not to claim the depreciation and we further hold that the authorities below were right in law in holding that the depreciation which the assessee was not desirous of claiming cannot be foisted on him. - Decided in favour of the assessee. 2015 (8) TMI 277 Disallowance under Section 40(a)(ia) - professional services to the assessee's hospital - assessee deducted tax at the rate of 2% under Section 194C but assessment was completed on the basis that tax deductible was at 5% as prescribed under Section 194J - assessee in default under Section 201 - whether where tax is deducted by the assessee, even if it is under a wrong provision of law, as in this case, the provisions of Section 40(a)(ia) of the Act cannot be invoked? - Held that:- Any fees or professional services or fees for technical services payable to a resident 'on which' tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction, has not been paid during the previous year, or in the subsequent year before the expiry of the 'time prescribed' under Section 200(1) of the Act, this provision is attracted. If Section 40(a)(ia) is understood in the manner as laid down in Gurusahai Saigal v. Commissioner of Income Tax, Punjab [1962 (8) TMI 66 - SUPREME COURT] it can be seen that the expression "tax deductible at source under Chapter XVII-B" occurring in the Section has to be understood as tax deductible at source under the appropriate provision of Chapter XVII-B. Therefore, as in this case, if tax is deductible under Section 194J but is deducted under Section 194C, such a deduction would not satisfy the requirements of Section 40(a)(ia). The latter part of this Section that such tax has not been deducted, again refers to the tax deducted under the appropriate provision of Chapter XVII-B. Thus, a cumulative reading of this provision, therefore, shows that deduction under a wrong provision of law will not save an assessee from Section 40(a)(ia). - Decided against assessee. 2015 (8) TMI 276 Benefit of accumulation U/s. 11(2) denied - Held that:- Judgment in the case of the trustees of Singhania Charitable Trust [1991 (7) TMI 16 - CALCUTTA High Court] relied upon by revenue has no manner of application to the facts and circumstances of this case because in this case admittedly there are also 28 objects, out of which only one object was indicated in the option under sub-section (2) of section 11 for which the accumulation was sought to be made. Therefore, the requirement of law was sufficiently met. he requirement of sub-section (2) of section 11 had duly been complied with by the assessee. Therefore, the exemption should have been allowed. - Decided in favour of assessee. 2015 (8) TMI 275 Validity of reopening of assessment - petitioner contend that after four years of the assessment year 2007-08, the second respondent issued notice dated 26.03.2014 under Section 148 seeking to reopen the assessment, without any tangible materials and without assigning reasons - assessee had not furnished the true information regarding its status and the details regarding payment of dividend and not disclosed full and true material facts on the claim of deduction under Section 10B - Held that:- It is not in dispute that the scrutiny assessment under Section 143(3) was completed on 16.12.2010 and the time limit of four years to invoke Section 147 of the Act is till 31.03.2014. It is not in dispute that the impugned notice under Section 148 has been issued on 26.3.2014 by the second respondent proposing to reassess the income for the assessment year 2007-08 since he had reason to believe that the income chargeable to tax for the said assessment year has escaped assessment within the meaning of Section 147 of the Act. Therefore, when it is clear that the reassessment resorted to by the second respondent is within the period of four years Of-course, it is true that no fresh material was available with the second respondent to proceed with the reassessment proceedings. However, it is to be noted that the second respondent had categorically mentioned the reasons as stated supra, by which, he had a reason to believe that the income chargeable to tax has escaped assessment inasmuch as the specific case of the Revenue is that the petitioner has not disclosed fully, truly all necessary material to enable the department to assess the income correctly regarding the particulars, viz., the petitioner company is not a domestic company, tax rate applicability on dividend distributor, expenses incurred out of EEFC Fund and Board of approval to claim deduction under Section 10B. Therefore, there is a failure on the part of the petitioner to disclose the above material facts and in such circumstances, the Assessing Officer has rightly initiated the reassessment proceedings on the basis of available material on record, which was specific, relevant and considerable, and after recording the reasons for his own belief that in the original assessment proceedings, the petitioner/assessee had not disclosed the material facts truly and fully and therefore income chargeable to tax had escaped assessment. In my opinion, he, therefore, correctly invoked the provisions of Sections 147 and 148 of the Act. Having carefully examined the reasons given by the Assessing Officer for re-opening the assessment in the present case, this Court is of the view that the said reasons are relevant and material and have a bearing on the matters in regard to which, the Assessing Officer has formed a reason to believe that the income chargeable to tax has escaped assessment and there is, absolutely rational and intelligible nexus between the reasons and the belief entertained by the Assessing Officer. In the present case, though the petitioner has given explanation elaborately in regard to the reasons relied on by the Assessing Officer for reopening the assessment and demonstrated the circumstances under which, there was no income chargeable to tax has escaped assessment, this Court is not supposed to decide the same since the issue involved in this Writ Petition is whether the Assessing Officer was right in reopening the assessment. To this extent, this Court has answered accordingly. - Decided against assessee. 2015 (8) TMI 274 Exemption from capital gains u/s 54F - assessee had not completed the construction of the house within three years - ITAT allowed claim - Held that:- The words used in Section 54F are 'purchased' or 'constructed' and held that the condition precedent for claiming benefit under such provision is the capital gain realized from sale of a Long Term capital asset should have been parted by the assessee and invested either in purchasing a residential house or in constructing a residential house. It has also been held that if the assessee has invested money in constructing the residential house, merely because the construction was not complete in all respects or such building is yet to be completed fully or the building not being in a fit condition for being occupied, would by itself not be a ground for the assessee to be denied the benefit under Section 54F of the Act. Assessee had produced material evidence before the First Appellate Authority to demonstrate that the construction was on the verge of completion by producing photographs and this aspect, though not noticed in detail, same came to be noticed by the Tribunal to reject the appeal of Revenue. It was also noticed by the Tribunal that construction of the building having been completed and same having been occupied by the assessee, is also a factor to dismiss the appeal of the revenue. See Commissioner of Income-tax Versus Sambandam Udaykumar [2012 (3) TMI 80 - KARNATAKA HIGH COURT ] - Decided in favour of assessee. 2015 (8) TMI 273 Disallowance of deduction claimed under section 80IA - CIT(A) allowed claim - Held that:- The business undertaking of the assessee is wind mill power generation/hosiery goods, etc., and it has claimed the benefit of deduction under Section 80IA of the Income Tax Act for the assessment year in question and for the subsequent years as well. Having exercised its option and its losses have been set off already against other income of the business enterprise, the assessee in this appeal falls within the parameters of Section 80IA of the Income Tax Act. There appears to be no distinction on facts in relation to the decision reported in Velayudhaswamy Spinning Mills case (2010 (3) TMI 860 - Madras High Court). - Decided in favour of the assessee 2015 (8) TMI 272 Disallowance u/s 36(1)(vii) - ITAT allowed claim - Held that:- Although as rightly contended by the learned Standing Counsel appearing for the appellant, it is true that the assessee had failed to adduce evidence as directed by the Tribunal in the first round of the litigation, the main reason which prevailed upon the Assessing Officer to disallow the deduction when the impugned order was passed after the matter was remanded to him, is his conclusion that the R.B.I guidelines to value the unsecured shares on the basis of yield to maturity method are inapplicable and cannot be adopted. This view taken by the Assessing Officer is contrary to the principles laid down by this Court in the judgments in the cases of 'Nedungadi Bank Ltd.' (2002 (11) TMI 29 - KERALA High Court) and 'Lord Krishna Bank Ltd.' (2010 (10) TMI 860 - Kerala High Court ). It was therefore that the Tribunal reversed the view taken by the Assessing Officer and directed that the notional loss claimed on revaluation of the securities as deduction, be allowed. In our view, since as held by this Court, the R.B.I guidelines are applicable to the cases in question, the view taken by the Tribunal cannot be said to be illegal. Therefore, answering the questions of law framed against the Revenue 2015 (8) TMI 271 Validity of reopening of assessment - when the reason recorded for reopening the assessment under section 147 itself does not survive, can tax be levied by the Assessing Officer for a totally different reason or issue, which was not the subject matter of reopening the assessment - assessment was reopened for the purpose of assessing the income from the sale of property under section 45(2) of the Act and denying the benefit of indexation. The reassessment was completed on total income of ₹ 29,90,672/-, which was for reasons other than the one recorded in the notice - Held that:- Considering the provision of section 147 as well as its Explanation 3, and also keeping in view that section 147 is for the benefit of the Revenue and not the assessee and is aimed at garnering the escaped income of the assessee [viz. Sun Engineering (1992 (9) TMI 1 - SUPREME Court) and also keeping in view that it is the constitutional obligation of every assessee to disclose his total income on which it is to pay tax, we are of the clear opinion that the two parts of section 147 (one relating to 'such income' and the other to 'any other income') are to be read independently. The phrase 'such income' used in the first part of section 147 is with regard to which reasons have been recorded under section 148(2) of the Act, and the phrase 'any other income' used in the second part of the section is with regard to where no reasons have been recorded before issuing notice and has come to the notice of the Assessing Officer subsequently during the course of the proceedings, which can be assessed independent of the first part, even when no addition can be made with regard to 'such income', but the notice on the basis of which proceedings have commenced, is found to be valid. It is true that if the foundation goes, then the structure cannot remain. Meaning thereby, if notice has no sufficient reason or is invalid, no proceedings can be initiated. But the same can be checked at the initial stage by challenging the notice. If the notice is challenged and found to be valid, or where the notice is not at all challenged, then in either case it cannot be said that notice is invalid. As such, if the notice is valid, then the foundation remains and the proceedings on the basis of such notice can go on. We may only reiterate here that once the proceedings have been initiated on a valid notice, it becomes the duty of the Assessing Officer to levy tax on the entire income (including 'any other income') which may have escaped assessment and comes to his notice during the course of the proceedings initiated under section 147 of the Act. Tribunal was correct in upholding reassessment proceedings - Decided in favour of the Revenue and against the assessee. Determination of the fair market value as on 1.4.1981 - whether tribunal erred by not taking into consideration the material on record and the valuation report filed by the appellant and consequently passed a perverse order on the facts and circumstance of the case? - Held that:- In the present case, the assessee had provided the reasons for determining ₹ 225/- per sq. ft. as the fair market value of the property by producing the relevant material, including valuation report of a registered valuer, which all have been ignored while arriving at the price of ₹ 84/- per sq. ft. The Assessing Officer assessed the value of the property as on 1.4.1981 on the basis of sale deeds of some nearby properties registered for such price in the year 1981 and thus, arrived at that figure. In our opinion, the same cannot be the proper mode of arriving at the 'fair market value' of the property in question as on 1.4.1981, for the purpose of determining 'Capital gains' under the Act. Tribunal was not justified in arriving at the fair market value of the property in question as on 1.4.1981 without taking into consideration the material on record, including the valuation report filed by the assessee. The matter thus requires to be remanded to the Assessing Officer for determination of the fair market value of the property in question in accordance with law and in the light of the observations made hereinabove. - Decided in favour of the assessee Disallowance of 50% of the expenditure towards brokerage incurred by the assessee - Whether tribunal was justified not allowing expenditure incurred wholly and exclusively in connection with the transfer more so when the payments are through banking channels? - Held that:- Without assigning any reason, the Assessing Officer disallowed 50% of ₹ 7,50,000/-, which was the total expenditure claimed by the assessee towards transfer and brokerage charges, even when the same had been paid by cheque and the receipt of which was obtained from the broker. Merely saying that generally 1-2% of the sale consideration is the brokerage, would not suffice when the specific case of the assessee was that heavy brokerage had to be paid because of the property being under litigation and that it being occupied by unauthorized persons for which payment had to be made to get it vacated. In our view, when the said brokerage was paid by cheque and there was sufficient reason for paying higher brokerage, the entire amount ought to have been allowed and deduction of 50% amount i.e., ₹ 3,75,000/- cannot be justified in law. It is noteworthy that the Assessing Officer, after observing that what is normally allowed as brokerage in such deals is 1-2%, had himself allowed 5% brokerage, meaning thereby that in the facts of the case, higher brokerage was required to be paid. Once the Assessing Officer accepts that the facts required payment of higher brokerage and it is not disputed that the transaction of brokerage was through banking channel, reduction of allowance of brokerage paid from 10% to 5%, without assigning or giving any reasons for the same, cannot be justified in law. - Decided in favour of the assessee 2015 (8) TMI 270 Computation of capital gain - claim of expenses u/s 48(1) - whether Tribunal was right in holding that the amount paid by the appellant to the Bank for discharge of the mortgage has to be taken as expenses relating to transfer and it is wholly and exclusively incurred for the transfer u/s 50? - Held that:- Section 48 provides that income chargeable under capital gains shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset such amounts, viz., expenses, incurred wholly and exclusively in connection with such transfer. The object behind such a provision is mainly for excluding those expenses incurred wholly or exclusively in connection with the transfer of the property. The facts in the present case reveal that for further development of the property, loan had been obtained by the appellant/assessee from City Union Bank and for the purpose of clearing the mortgage loan, the appellant/assessee had sold the property and effect the one-time settlement with the bank. The Assessing Officer had held that since the mortgage loan had been long time after the acquisition of the property, the same would not stand covered under Section 48 (1) of the Act. That being the case, it does not appeal to us that the explanation relating to discharge of the mortgage to the bank, as submitted by the assessee, can be termed as expenditure, as the property had been acquired long time before taking the mortgage loan from the bank. The Tribunal, to come to the finding that the said discharge of mortgage to the bank cannot be termed as expenditure, has placed reliance on the jurisdictional Court's decision in Vajrapani Naidu's case [1998 (10) TMI 39 - MADRAS High Court] wherein held the amount was paid as part of the consideration to the sale. The distinction that was sought to be made by the Tribunal between the case where the mortgage is discharged by the vendor prior to the sale and the case where the discharge of the mortgage is effected at the time of the sale by payment of the outstanding amount to the mortgagee by the vendor and the sale free from encumbrances, is untenable. The only point of relevance is whether the mortgage was created by the vendor or whether it subsisted at the time of acquisition of title thereto by the vendor and was burdened with the same at the time of such acquisition of title In the present case, mortgage has been created by the present appellant/assessee and consequent to the sale, the assessee has discharged the mortgage to City Union Bank. As the burden had been created for his own benefit by offering the property as security to City Union Bank, the amount spent for discharging that burden whether prior to sale, or at the time of sale, by way of one-time settlement to the Bank, cannot be regarded as expenditure wholly and exclusively in connection with the transfer. In the present case, the discharge was in the course of sale. We find that the payment of the outstanding amount in discharge of mortgage by the vendor, viz., appellant herein, cannot partake the character of an expenditure. It is not a case where the assessee had discharged the mortgage created at the time of acquisition of the property by the present appellant/assessee, to make a distinction otherwise. Thus Tribunal was right in law in holding that the amount of ₹ 22,51,220/- paid by the appellant to the Bank for discharge of the mortgage has to be taken as expenses relating to transfer and it is wholly and exclusively incurred for the transfer u/s 50 of the Income Tax Act, 1961 - Decided against revenue. 2015 (8) TMI 269 Reopening of assessment - non disposing of the objections raised by the petitioner, raised against the reopening of the assessment/reasons recorded by AO - Held that:- The detailed objections were raised against reopening of the assessment on 11.06.2014, the Assessing Officer did not disposed of the same till the assessment order came to be passed under Section 143(3) r/W Section 147 of the Act and has dealt with and disposed of the objections simultaneously while passing the assessment order and that too by a non-speaking order. As observed by the Hon'ble Supreme Court in the case of G.K.N. Driveshaft (India) Ltd. (2002 (11) TMI 7 - SUPREME Court ) and Arvind Mills Ltd. (2004 (8) TMI 97 - GUJARAT High CourT), the Assessing Officer is not only under a mandate to dispose of such preliminary objection before proceeding with the assessment, even the Assessing Officer is under a mandate to dispose of such preliminary objections by passing a speaking order. Under the circumstances, the impugned assessment order cannot be sustained and the matter is remanded to the learned Assessing Officer by directing the Assessing Officer to pass a speaking order and to dispose of the objections raised by the petitioner against reopening of the assessment and/or against reasons recorded for reopening of the assessment and thereafter to communicate the outcome of the same to the petitioner and after giving reasonable time to the petitioner to challenge the same before higher Court / Forum, may proceed further with the assessment in respect of the assessment for which such notice has been issued. Impugned assessment order dated 20.03.2015 passed by the Assessing Officer is hereby quashed and set aside and the matter is remitted to the file of the Assessing Officer at the stage of submitting the objections by the petitioner against reopening of the assessment for the AY 2009-10. - Decided in favour of assessee by way of remand. 2015 (8) TMI 268 Validity of proceedings initiated under s. 158BD - time barred - Held that:- The basic premise on which this contention is raised is that the assessment completed against the AOP is under s. 158BC. However, the assessment completed against the person other than the person searched can only be under s. 158BD of the Act. Yet another contention raised is that the notice issued to the AOP mentions only s. 158BC. Though, it is factually true, the question is whether the proceedings initiated under s. 158BD by issuing notice mentioning s. 158BC is a legally tenable one or not. In our view, the answer has to be in the affirmative and our conclusion is justified by the principles laid down by a Division Bench of this Court in CIT v. Lekshmi Traders [2010 (11) TMI 467 - KERALA HIGH COURT ] where it has been held notice should be issued in the name of the assessee proposed to be assessed and in the case of an AOP, to the principal officer or any member thereof and serve notice on such person to represent the AOP. In this case, admittedly, notice was received by the respondent assessee, and one of the members of the AOP filed return pursuant to the notice, in Form 2B on behalf of the AOP. In ether words, when the assessee admits receipt of notice and files its proper return in the prescribed form in terms of the notice, we do not think that the assessee is entitled to contend that the notice is not served in accordance with the procedure prescribed under the above sections. As far as the contention that the records were not transferred, we wonder, how such a contention can be raised by an assessee, because unless the records were transferred, the jurisdictional AO could not have issued the notice. Therefore, we are not prepared to accept this contention raised by the assessee. As far as the contention that the AO has not recorded his satisfaction, as rightly found by the Tribunal in Annex. D order, Annex. A assessment order itself contains the satisfaction of the AO and the relevant part of Annex. A has been extracted in the earlier part of this judgment. Therefore, we are unable to accept this contention either. Third contention raised is that the AO should not have resorted to an estimation of the income. While it is true that pure estimation of the income is impermissible in a proceedings under s. 158BD. the question as to whether such estimation has been done in this case has to be gathered from the materials before this Court a reading of the above shows that it was based on the statement made by Sri Shinde himself that the AO concluded that for the eight months period from June 1998 to January 1999 the escaped income was ₹ 4,80,000. Therefore, the quantification has been done only based on the statement given by none other than late Sri Shinde himself. Facts being so, the AO cannot be accused of having resorted to any estimation by himself. Even apart from this, in a proceedings under s. 158BC or s. 158BD, certain amount of estimation is permissible and this has been recognised in CIT v. Hotel Meriya [2010 (5) TMI 556 - Kerala High Court] - Decided against assessee. 2015 (8) TMI 267 Addition on account of interest on Non Performing Assets u/s.43D - accrual on interest - the assessee is a cooperative bank and not a Scheduled Bank - CIT(A) deleted the addition - Held that:- Pune Bench of the Tribunal in the case of Osmanabad Janata Sahari Bank Ltd (2015 (3) TMI 886 - ITAT PUNE) has decided an identical issue in favour of the assessee after considering the decision of the Hon’ble Supreme Court in the case of Southern Technologies Ltd. [2010 (1) TMI 5 - SUPREME COURT OF INDIA] to finally held that the interest income relatable to NPA advances did not accrue to the assessee) which has been followed by the Ld.CIT(A). Interest on the sticky advances/NPA advances cannot be brought to tax - Decided in favour of assessee. 2015 (8) TMI 266 Eligibility for claiming deduction u/s. 80IB(10) - incomplete housing project - Held that:- In the present case, it is an undisputed fact that the assessee had obtained no objection certificate from the local authority in the year 2007 and has thereafter applied for obtaining completion certificate to the local authority on 02-01-2007. The assessee had already obtained completion certificate in respect of 67 units in the year 31-03-2003 itself. There is nothing on record to show that the residential dwelling units were not completed or not fit for occupation at the time when the assessee made application for issuance of completion certificate. It has also not been refuted by the Revenue that in the year 2007, the Grampanchyat had issued no objection certificate to the assessee for getting individual electricity connection in all the residential units. Thus, we are of the considered opinion that the units were completed in all respect and ready for occupation. As far as the deficiency pointed out by the ld. DR with regard to the drainage and septic tank is concerned we concur with the findings of the Commissioner of Income Tax (Appeals) that construction of soakpit which is required to drain excess water from the septic tank of venial nature. The septic tank has substantial capacity to hold the drainage water and it is only in the case of overflow that the water flows from septic tank to the soakpit. This discrepancy pointed out by the local authority was also removed by the assessee. As far as the objection of the Revenue that against 213 units approved the assessee has constructed only 204 units, we do not find any merit in the same. Four units were not constructed as space was left for 9 mtr. Proposed D P Road and 5 units were left out to make space for construction of septic tank. The non-construction of 9 units, in our considered view will not render 204 completed units in-eligible for the claim of deduction u/s. 80IB(10) of the Act. Thus non obtaining of completion certificate in respect of project approved prior to 01-04-2005 will not render the assessee ineligible for claiming deduction u/s. 80IB(10) in the impugned assessment years. In appeals for assessment years 2005-06 to 2007-08, the Revenue has raised ground with regard to commercial units in the project. Since, the same has not been pressed by the ld. DR. The same are dismissed as not pressed. - Decided in favour of assessee. 2015 (8) TMI 265 Revision proceedings u/s. 263 - Assessing Officer has not examined the issue as Whether the claim made by the assessee was factually correct and also whether relevant conditions are fulfilled as per the provisions of section 72 and section 32 of the Act or not? - AO in his order has categorically mentioned that due to limitation of time the assessee’s version of brought forward losses is relied upon and allowed the claim of the assessee, thus findings of the Assessing Officer are erroneous and prejudicial to the interest of Revenue.Held that:- Applying the ratio laid down by the Hon’ble Gujarat High Court in General Motors India Pvt. Ltd. Vs. DCIT (2012 (8) TMI 714 - GUJARAT HIGH COURT ) to the facts of the present case, the issue of allowability of unabsorbed depreciation relating assessment year 1999-2000 against the income arising in assessment year 2008-09 is to be set off and consequently, the order passed by the Assessing Officer in this regard cannot be said to be prejudicial to the interest of Revenue. Consequently, the revisionary powers exercised by the Commissioner against the order of assessment which is not prejudicial to the interest of Revenue, even where the order passed by the Assessing Officer was erroneous, cannot be exercised, since the twin conditions have not been fulfilled in the case. In view thereof, we reverse the directions of the Commissioner in this regard and uphold the order of Assessing Officer in allowing the set off of unabsorbed depreciation claimed against the business income in computation of income. The directions of the Commissioner in this regard are thus, reversed and the order of Assessing Officer is restored We find that the issue in the present appeal is identical to the one already adjudicated by the Tribunal in the case of M/s. SAB Miller Breweries Pvt. Ltd. Vs. ACIT [2015 (8) TMI 307 - ITAT PUNE]. Accordingly, we hold that there is no infirmity in the order of Assessing Officer in allowing the assessee to carry forward unabsorbed depreciation for the assessment years 1996-97 and 1997-98 to be set off against the profit of the assessee from business or profession from assessment year 2006-07. - Decided in favour of assessee. 2015 (8) TMI 264 Exemption u/s.54EC - LTCG - AO submitted that the ld.CIT(A) was not justified in allowing the exemption of ₹ 1 crore as there is an amendment in the Act, whereby the limit of investment is restricted to the extent of ₹ 50 lacs - Held that:- If the assessee is able to keep the six months’ limit from the date of transfer of capital asset, but, still able to place investment of ₹ 50 lakhs each in two different financial years, we cannot say that the restrictive proviso will limit the claim to ₹ 50 lakhs only. Since assessee here had placed ₹ 50 lakhs in two different financial years but within six months period from the date of transfer of capital assets, assessee was definitely eligible to claim exemption upto ₹ 1 Crore. The same view has been taken by Ahmedabad Bench of this Tribunal in the case of Aspi Ginwala & Others (2012 (4) TMI 195 - ITAT AHMEDABAD ). We are, therefore, of the opinion that the assessee has to succeed in this appeal. Claim of the assessee for exemption upto ₹ 1 Crore has to be allowed in accordance with Section 54EC of the Act. - Decided in favour of assessee. CIT(A) directing the Assessing Officer to allow the deduction of ₹ 81,48,754/- from LTCG and of ₹ 18,51,246/- from the STCG and tax the balance LTCG of ₹ 23,97,146/- and STCG of ₹ 5,44,587/- - Held that:- Respectfully following the ratio laid down by the Hon’ble Gujarat High Court in the case of CIT vs. Polestar Industries(2013 (11) TMI 910 - GUJARAT HIGH COURT ), this ground of Revenue’s appeal is rejected. - Decided in favour of assessee. Disallowance of expenditure - CIT(A) allowed claim - Held that:- Heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the ld.CIT(A) has given a detailed finding on fact in his order. The finding of the ld.CIT(A) has not been controverted by the ld.Sr.DR by placing any contrary material on record, therefore we do not find any reason to interfere with the order of the ld.CIT(A) - Decided in favour of assessee. 2015 (8) TMI 263 Transfer pricing adjustment - selection of comparable - Infosys BPO Ltd. Held that:- The assessee is a captive unit providing back office support services to its AE alone, which are basically in the nature of processing of insurance claims and the data entry, it can have no valid comparison with Infosys Ltd., as the latter is a full-fledged risk taking entrepreneur with diversified business including software product, consulting application, design development, re-engineering and maintenance etc. Infosys Ltd. has developed/owns proprietary products like Finacle, whereas the assessee, being a captive unit, does not own any such proprietary product. Unlike Infosys, the assessee does not have any substantial intangible assets . Thus we direct the exclusion of this company from the list of comparables. Wipro Ltd. (Seg.)is also a giant entity in comparison with the assessee company with marked differences as regards risk profile, nature of services, ownership of IP rights, expenditure on R & D etc, thus be excluded from the list of comparables. HCL Comnet Systems & Services Ltd. (Seg.) cannot be excluded from the list of comparable as in view of the fact that the assessee has admitted the functional comparability of the relevant segment of this company and the only difference pointed out is about its higher turnover and a potentially comparable case cannot be excluded for the reason of high or low turnover or high or low profit margin Eclerx Service Ltd. company is a Knowledge Process Outsourcing (KPO) company providing data analytics and data processing solution to its clients. It is a recognized expert in Financial services and Retail and Manufacture. It provides consulting services and also process outsourcing. The above details have been pointed out by the ld. AR from the Annual accounts of this company for the Financial year 2007-08. Nothing has been brought on record by the ld. DR to show that the functions performed by this company in the relevant year were any different. When we consider the nature of assessee’s business, which is primarily that of processing insurance claim and data entry, it becomes vivid that Eclerx Service Ltd. cannot be considered as functionally comparable with the assessee company. Maple Esolutions Ltd. and Triton Corp. Ltd. companies are owned by Rastogi Group and the reputation of the Directors of these companies was having question-mark in earlier years. Both these companies are inter-related entities. During the year under consideration, there was acquisition of 100% shares of Maple Esolutions Ltd. by Triton Corp. Ltd. and thus, Maple Esolutions Ltd. became a wholly owned subsidiary of Triton Corp. Ltd. w.e.f 01.01.2007. It can be seen that this merger/acquisition has taken place during the year under consideration, thereby shattering their comparability. Thus we direct the exclusion of these two companies from the list of comparables. 2015 (8) TMI 262 Cash deposits made in ING Vysya Bank as unexplained cash credits u/s. 68 - Assessee stated that the cash is deposited by customers in ING Vysya Bank account and those funds were utilized for purchase of bitumen for his customers. - Held that:- It transpires from the rejoinder to the remand report that the deposits could be categorised into three categories viz., deposits made by the parties and for which they have got supply of material amounting to ₹ 55,83,000 in the first place. In the second place deposits made by the parties and for which they have got the money back amounting to ₹ 11,25,000 and in the third category cheques deposited by the parties and which are dishonoured by the bank amounted to ₹ 10,00,000. Thus, insofar as the cheques were dishonoured, no element of income could be attributed. In the first and second category of deposits, it could be said that the deposits were in the course of transactions and could be held that some business advantage accrued as such monies were there with the assessee for some considerable time. Hence the contentions of the AR that in the first category materials were supplied and in the second category the parties got back the monies deposited and as such no business advantage accrued is not tenable. It is an undisputed fact that cash deposits were available to the assessee for considerable period whose turnover is the total of first and second items amounting to ₹ 67,08,000 on which a reasonable return could be around 6% - We do not find any infirmity in the order of the CIT(A) and the same is confirmed. - Decided against revenue 2015 (8) TMI 261 Reopening of assessment - legality of assessment framed u/s 143(3) r.w. notice of reopening u/s 148 challenged - Held that:- At the outset, the notice is far outside the period prescribed under section 149, i.e., the notice has to be issued within a period of 4 years or 6 years from the end of the assessment year, therefore, issued on March 23, 2009 is far outside, hence the notice is bad in law. On the second argument, that there must be cogent reasons for reopening, that too, we find that the reasons as recorded in the impugned notice are the same in sum and substance and that there is nothing new which has been found and added and which made the present proceeding/ reasons different from the earlier reasons. Thus the reassessment proceedings are held to be bad and, we therefore, cancel the initiation of reassessment proceedings - Decided in favour of assessee. 2015 (8) TMI 260 Disallowance under Section 40A(2) 2% out of 5% commission paid by the appellant to Govind Glass Industries Ltd. - Held that:- Assessing Officer held relating to the question framed in this appeal i.e. commission of Govind Glass Industries limited, we see no germane reason in the finding of the Assessing Officer in concluding against the appellant. Further, the CIT(A) while partly allowing the appeal of the assessee has again in paragraph No.8 has held that the commission payment to GGL was justified but the CIT(A) has not given any reason why the total sales of 5% should not be granted. Similar mistake came to be committed by the Tribunal. The Tribunal again fall into error while partly allowing the appeal of the assessee. The Tribunal has also not given any germane reasons why 5% interest is not allowed. Further, it appears from the record that the appellant has produced the evidence before the Tribunal. Therefore, the decisions relied upon by the learned advocate for the appellant would enure for the benefit of the appellant. Taking into consideration the aforesaid facts and circumstances of the case and also the principle laid down by this Court in the case of Ashok J. Patel (2013 (12) TMI 1480 - GUJARAT HIGH COURT) & Sarjan Realities Ltd. (2014 (8) TMI 206 - GUJARAT HIGH COURT), it cannot be said that the Tribunal was right in granting 3% commission out of 5% to Govind Glass Industries Ltd. - Decided in favour of the assessee Customs 2015 (8) TMI 292 Refund of terminal excise duty already paid – Goods supplied against International competitive bidding – Held that:- As per Entry 91 of Notification, 2006 and Para 8.3 of Foreign trade policy, all goods supplied against International Competitive Bidding (ICB) were exempted from duty of excise – Petitioner had paid excise duty and thereafter made claim for refund of excise duty paid – Procedure adopted by Single Judge was fallacious in light of settled principle of law that Court cannot direct statutory authority to exercise discretion in particular manner therefore, Single Judge ought not to have directed DGFT to pass order keeping in mind observations made therein – Whole controversy was with regard to interpretation of provisions of statutory policy – When supplies were made against ICB, TED was exempted – Respondent failed to avail exemption for supplies – Also respondent had not disputed fact that TED was paid by availing CENVAT Credit Account in terms of CENVAT Credit Rules, 2004 – Impugned orders hereby set aside –DGFT to consider application of respondent for refund in terms of provisions of FTP, 2009-2014 – Appeals disposed off – Decided against Revenue. 2015 (8) TMI 291 Import of wine products - Refusal of NOC – Product Containing Tartaric Acid and Ascorbic Acid – prohibited product or not - Whether Tartaric Acid and Ascorbic Acid were food additives that were permitted to be added to alcoholic wines under FSSR, 2011 – Held that:- main objective of Bill was to bring single statute regime relating to food and to provide for systematic and scientific development of Food Processing Industries – Section 19 clearly prohibits any food from containing any food additives or processing aids unless it was in accordance with provisions FSSR, 2011 – As per Regulation 3.1.1 food products may contain food additives – As decided in case of Parle Biscuits v/s Food Safety and Standards Authority of India and others[2012 (12) TMI 983-BOMBAY HIGH COURT] use of word "and" in regulation does not indicate that food additive must be stated to be permissible both in regulations and Appendix A - As alcoholic wines are item (x) of Regulation 3.1.1(4), therefore food additives to be added to alcoholic wines – As per Regulation 3.1.12, Tartaric Acid finds specific mention and can be added as acidulant provided maximum level of use was 600 ppm – Thus Tartaric and Ascorbic Acid was permitted food additive which can be added to alcoholic wines – Petition allowed – Decided in favour of Petitioner. 2015 (8) TMI 290 Recovery of duties erroneously refunded – Extension of limitation period - Whether customs authorities could invoke provisions of Section 28 of Customs Act, 1962, to avail benefit of extended period of limitation – Held that:- original licence holder, had deliberately suppressed fact of having availed Modvat credit under Rule 57A of Central Excise Rules, 1944, and thereby made willfully wrong declaration to licensing authority to obtain endorsement of transferability of same while transferring licenses to appellant – In view thereof, extended period of limitation would be available to authorities for purpose of claiming duty even against appellant, who was transferee of licence – No merit in appeals and accordingly dismissed – Decided against Appellant. 2015 (8) TMI 289 Penalty for non-levy of duty – Respondent had cleared goods taking benefit of Notification No. 13/81-Cus, without paying any duty and it was found that respondent had not adhered to conditions stipulated in aforesaid Notification, namely, system imported was to be used in premises which was 100% EOU – Tribunal upheld order of penalty as imposed by adjudicating authority – Held that:- provision of Section 114A as existed at relevant time confirmed same on part of adjudicating authority in matter of imposition of penalty – Having regard to valuation of conditions contained in Notification No. 13/81-Cus., reducing penalty but even less than 25%, in facts of these cases, was not warranted – Therefore, penalty enhanced to 50% of duty – Appeals partly allowed – Decided partly in favor of revenue. 2015 (8) TMI 288 Appeal was filed against order of tribunal in GLENCORE INDIA LTD. V. COMMISSIONER OF CUSTOMS [2004 (4) TMI 164 - CESTAT, MUMBAI] – Only issue which arose for consideration and was decided by Tribunal in impugned judgment was as to whether assessments were provisional or final – Appeal against said issue was to be made before High Court under Section 130 of Customs Act, 1962 – Current appeal hereby dismissed as was not maintainable – Appeal filed before high court shall be decided on merits and will not be dismissed only on ground of limitation. Corporate Laws 2015 (8) TMI 287 Manipulative, fraudulent and unfair trade practices – Circular trading – Non-compliance of statutory requirement– Penalty was imposed for violation of Regulations 4(1), 4(2)(a), 4(2)(e) of SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 and violation of Code of Conduct for Stock Brokers – Held that:- not in dispute that six clients of Appellant acted in collusion amongst each other in synchronized / circular / reversal manner, thereby artificially increased volume / price of GIL scrip – Rule 260 of BSE specifically holds stock broker fully responsible for all acts of its employees – Appellant executed more than 25% of trades in scrip, carried out synchronized, reversal and circular trading thereby manipulated price – Since fraudulent transactions took place from terminal of Appellant in ordinary course of business, appellant cannot escape liability– No fault in impugned order – Appeal dismissed – Decided against appellant. 2015 (8) TMI 286 Scheme of Amalgamation – Dispensing convening of meetings of equity shareholders, secured and unsecured creditors to consider and approve, proposed Scheme of Amalgamation under Section 391(1) of Companies Act, 1956 – Held that:- board of directors of demerged and resulting companies no.1&2 in their separate meetings unanimously approved proposed Scheme of Amalgamation – Equity shareholders, secured and unsecured creditor of demerged and resulting companies no.1&2 have given their consents/no objections in writing to proposed Scheme of Amalgamation and were found in order – Application stands allowed – Decided in favour of applicants Service Tax 2015 (8) TMI 308 Availability of Cenvat Credit of Service Tax paid on Exempted Services of Job work - process of chrome plating - Business auxiliary service - Notification No. 8/2005-ST, dated 01-03-2005 - Held that:- A bare reading of this notification denotes that this notification is issued under section 93(1) of the Finance Act, 1994 which exempts the taxable services of production of goods on behalf of the principal manufacturer from the whole of service tax leviable under Section 66 of the Finance Act. However, this exemption notification is subject to the condition that the said exemption shall apply only in cases where such goods are produced using raw materials or semi finished goods supplied by the client i.e., the principal manufacturer and goods so produced are returned back to the said client for use in or in relation to the manufacture of other goods on which appropriate duty of excise is payable. - Notification is condition precedent. Section 5A(1A) of the Central Excise Act provides for power to grant exemption from duty of excise. Section 5A(1A) of the Central Excise Act specifically provides that "for the removal of doubts, it is hereby declared that where an exemption under Sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods". - The contention urged on behalf of the Department that the FMGIL having wrongly paid service tax has consequently passed an inadmissible CENVAT credit amounting to ₹ 2,02,00,275/- to the principal manufacturer i.e., FMTPR much against the exemption Notification No. 8 of 2005 is not worthy of acceptance. Notification No. 8 of 2005 is a conditional notification and Section 5A(1A) of Central Excise Act, 1944, is not-applicable to the present case. - no interference is called for with the well reasoned order of the Tribunal - Decided against Revenue. 2015 (8) TMI 306 Waiver of pre deposit - Activity of chilling of milk - Business Auxiliary Service - appellant was providing service of chilling of milk to M/s. Sriganganagar Zila Dugdh Utpadak Sahakari Sangh Ltd. - Held that:- Decision in the case of M/s. Sharma Ice Factory [2014 (6) TMI 493 CESTAT New Delh] followed - appellant has made out a good case for waiver of pre-deposit and we order accordingly staying recovery of the impugned liability during pendency of the appeal - Stay granted. 2015 (8) TMI 305 Waiver of pre deposit - Advertising Services or Business Auxiliary Services - Held that:- adjudicating authority as well as the first appellate authority has held that the activity of the appellant in so far as receiving commission from the print media fall, under the category of Business Auxiliary Services and amount paid by the appellant is considered as correct tax liability and appropriated against the service tax under the category of Business Auxiliary Service. On a specific query from the Bench, as also seen from the grounds of appeal, the Ld. Counsel was unable to point out to us whether they have contested the classification of the services before the Tribunal. Since the appellant has not contested the classification made by the lower authorities, we find that the appeal against the order is devoid of merits - Decided against assessee. 2015 (8) TMI 304 GTA services - Payment of freight - liability to discharge service tax burden is on supplier of goods or purchases to goods - Held that:- The observation made by the first appellate authority does not convey that the freight has been directly paid by the appellant to the transporter. Rather the invoices produced by the appellant indicate that amount of freight has been recovered from the appellant. The verification report dated 24.10.2013 made by the jurisdictional range officer also conveyed that supplier of the material to the appellant has charged the freight in their invoices. Copy of this report has not been given to the appellant. The orders passed by the lower authorities are, therefore, in gross violation of principles of natural justice. - The appellant should produce all the documentary evidence required to be establish that the freight is not paid by them to the transporters. It is made clear that all the issues are kept open for the adjudicating authority to deliberate upon. - Matter remanded back - Decided in favour of assessee. 2015 (8) TMI 303 Imposition of penalties under Sections 76, 77 and 78 - Technical Inspection and Certification Services and Overseas Service Providers - Held that:- Appellant is not agitating the issue of livability of service tax on reverse charge basis and has paid the entire amount alongwith interest. In the case of appellant the entire service tax paid on reverse charge basis is admissible to the appellant there cannot be any intention to evade payment of service tax. It is also observed that the issue of leviability of service tax on reverse charge basis was under litigation for sometime till under Section 66A of the Finance Act, 1994 was introduce. There was confusion in the law regarding leviability of service tax on reverse charge basis. Appellant, therefore, held a reasonable cause for not making the payment of service tax on reverse charge basis. However, the entire amount of service tax was paid before the issue of Show Cause Notice therefore, appellant’s case in covered by the provisions of Section 80 of the Finance Act, 1994. Further, in the case of Revenue neutral situation no intention to evade payment of service tax can be attributed on the part of appellant for imposing penalties under Sections 76, 77, and 78 of the Finance Act, 1994. - penalties imposed upon the appellants are set-aside - Decided in favour of assessee. 2015 (8) TMI 302 Benefit of Cenvat Credit - GTA services - outward GTA service credit was availed by the appellant with respect to services availed after the place of removal - Held that:- The definition of inputs service is given in Rule 2 (l) of the Cenvat Credit Rules, and conveys that Cenvat Credit is admissible to an assessee upto the ‘place of removal’. - point where Sale takes place or any other place or premises from where the excisable goods are to be sold after their clearance from the factory, also becomes the ‘place of removal’. The entire transportation cost and transit insurance are paid by the appellant. - Decided against Revenue. Central Excise 2015 (8) TMI 299 100% EOU - debonding - DTA sales made by the appellant against advance DTA permission - Concessional rate of duty under Notification No. 23/2003-CE (Sl. No. 2) - Invocation of extended period of limitation - Held that:- Since, the exemption Notification No. 23/2003-CE in terms of its condition, provides concessional rate of duty only to the goods cleared into domestic tariff area in accordance with sub-para (a), (d), (e) or (g) of para 6.8 of the Foreign Trade Policy and since it does not cover the goods cleared into DTA against advance DTA sale permission given under sub-para (k) of para 6.8 of the Foreign Trade Policy, it is very clear that the goods sold into DTA against advance DTA sales permission granted under para 6.8 (k) are not covered by this notification. The fact that the advance DTA clearances in terms of para 6.8 (k) of the Foreign Trade Policy are not covered by this exemption notification is also clear from the Condition (II) (b) of the notification, according to which the total value of the goods cleared into DTA under sub-para (a), (d), (e) and (g) of para 6.8 does not exceed 50% of the FOB value of exports made during the financial year. Letter from Development Commissioner permitting advance DTA clearances by the appellant is also mis-leading as while it refers to the permission being granted in terms of para (g) of Appendix 14 1H of Handbook of Procedures, which pertains to advance DTA clearances, it does not mention para 6.8 (k) of the Foreign Trade Policy, which is the parent provision under which the advance DTA clearances can be given. - As the Condition No.II of the said notification could not be fulfilled by the appellant, therefore, the appellant is not entitled to claim the benefit of the notification. Consequently, the appellant is liable to pay duty. Therefore, the appellant have no case on merits. Advocate for the appellant as the Counsel himself has admitted that the appellant is not able to fulfill the Condition No.II attached to the Notification No.23/03-CE. Therefore, claiming the benefit thereof does not arise. This fact was not brought in the knowledge of the Department by the assessee by availing the benefit of the said notification. In these terms, the lower authorities have rightly invoked the extended period of limitation. - Decided against assessee. 2015 (8) TMI 298 Valuation - Related person - whether there was short payment of duty in the clearance of the goods by respondent to M/s ITL due to the reason both of them is having mutuality of interest and are related persons - Held that:- The correctness of demand for extended period is also to be decided. It is relevant to note that the allegation of Show Cause Notice says since the noticee also exclusively sold their entire production of excisable goods to their related M/s ITL, the assessable value of the said excisable goods is required to be determined in terms of the provisions of Section 4(3)(b)(iv) Central Excise Act, 1944 read with Rule 6(c)(ii) and Rule 6(b)(ii) of the Valuation Rules, 1975 upto 1.7.2000 and as per amended Section 4(i)(b) read with Rule 8, 9 and 10 of the valuation Rules 2000 w.e.f. 1.7.2000. - This allegation is examined in detail by the ld. Commissioner (Appeals). He observed that only holding of share of 50% and selling of entire production by the appellants to M/s ITL is not enough to prove the mutuality of interest in the business of each other. Detailed examination and categorical finding of the ld. Commissioner (Appeals) in respect of both limitation and on merits could not be faulted and we find no reason to interfere of the order of the ld. Commissioner (Appeals) - Decided against Revenue. 2015 (8) TMI 297 Classification of goods - Manufacturing activity or not - Classification of Hajmola, Imli - Classification under Chapter 20 or Chapter 13 - Held that:- Process undertaken to produce tamarind concentrate/paste does not produce any chemical change and the product at the starting point and at the end of the remains the same, but for formation of pulp and removal of added water/moisture. Hence, we find that in the production of tamarind paste/concentrate no process amounting to manufacture is involved. It is pertinent to note that the Department also held the same view in the earlier proceedings as confirmed by the learned Commissioner (Appeals) against which the Revenue is in appeal in two cases. The reason for change in the stand by the Revenue in the subsequent proceedings has not been brought out clearly. There is no change in the process and it is only the change of interpretation without any additional evidence by the Revenue which resulted in confirmation of demands for the later periods. - there is no justification for the change in the Departments view and hold that there is no process amounting to manufacture in this case. Classification of Tamarind Paste/Concentrate - Held that:- It is clear from the flow chart explaining the processed undertaken by M/s Dabur there is no extraction of any material and certainly not from any vegetable source. The raw tamarind purchased is washed and boiled in a tilting pan and thereafter the water is extracted through hydraulic pressure. The resultant product is passed through Film evaporator which gives totally soluble solids. The process undertaken by M/s Dabur apparently cannot be called vegetable extraction. The process involved and the product produced cannot be covered under heading 1302, when examined alongwith Explanatory notes there is no extraction. The water used in washing and boiling the tamarind is in fact removed at thrown away as waste resulting in usable product in the form of pulp. The process thus is more of pulp preparation rather than extraction. These aspects have been examined in detail in the Commissioner (Appeals) order dated 08/05/2006. Here again the change in the view of Revenue for the later period to classify the product as vegetable extract under Heading 1302 is not explained with the reason. With the same set of facts the earlier view of classification was changed - Classification headings and the relevant explanatory notes, we find that the classification adopted prior to change over was correct and sustainable. In other words, the impugned product is correctly classifiable under Chapter 20 rather than Chapter 13 - Decided against Revenue. 2015 (8) TMI 296 Area based exemption - Denial of exemption claim under Notification No. 50/2003-CE dated 10/06/2003 - to deny exemption for the period prior to January 2008 on the ground that the appellant has not opted for exemption - Held that:- The appellant is located in area which gives benefit of Notification No. 50/2003-CE i.e. area based exemption. Appellant is manufacturing the final product which is specified in the list for claiming exemption under the said notification. The appellant has filed in the list for claiming exemption under the said notification. The appellant has filed a declaration on 28/07/2006 declaring the goods which they are manufacturing and details of their unit. Appellant is regularly filing the details of their clearances during the impugned period periodically. On 15th January, 2008 a query was raised in response to the declaration filed by the appellant on 28th July 2006 for want of nature of inputs being used in manufacturing of final product which was also provided by the appellant vide their letter dated 25/01/2008 - As it is the understanding of the Department itself that non-supplying the details of nature of inputs to be used by the appellant prior to January 2008 was not a suppression in that case the denial of benefit of exemption notification shall become fatal to the appellant. - when the allegation of suppression has been dropped against the appellant, the appellant is entitled for benefit of exemption Notification No. 50/2003-CE during the impugned period also - Decided in favour of assessee. 2015 (8) TMI 295 Maintainablity of appeal - Revenue had not complied with the provisions of Section 35B(2) of The Central Excise Act, 1944 - Approval from Committee of Commissioners - Held that:- Compliance with the Section is necessary and that in the event of the failure to comply with the same, no appeal is deemed to have been instituted in the eyes of law. The Division Bench, in that case, dealt with Section 130 of the Customs Act, 1962, which is para materia to Section 35B(2) of the Central Excise Act, 1944, with which we are concerned - The Supreme Court in CCE, Vadodara vs. Rohit Pulp and Paper Mills, [1998 (4) TMI 138 - SUPREME COURT OF INDIA] held that the provisions of Section 35B (2) are clearly required as a prerequisite to the direction to any Central Excise Officer to file an appeal. As no such direction was produced, the appeal was dismissed. - In the present case also, Section 35B(2) has not been complied with - Decided against Revenue. 2015 (8) TMI 294 End use based exemption - Notification No. 10/97-C.E. - Whether impugned goods are spare parts or accessories of the scientific and technical instruments/apparatus - end use certificate - Duty demand - Imposition of interest and equivalent penalty - Held that:- After reproducing the notification in the impugned order [2014 (3) TMI 274 - CESTAT MUMBAI], the Tribunal construed it and held that the end use certificates certify that the impugned goods are used as parts/accessories, scientific and technical instruments /apparatus. The Bhabha Atomic Research Centre (BARC) certificate dated 7th May, 2008 is relied upon and that certifies that the pipes/tubes are used as parts /accessories and for setting up of the Pickling and Passivation Plant and installation of Ventury Scrubber System. If such is the nature of the certificate and the wording thereof being clear and unambiguous the Tribunal rightly allowed the appeal of the assessee and reversed the order of the Commissioner. The Commissioner has not performed the task assigned to it by the Tribunal. His duty was to scrutinize and verify the certificates in the light of the terms of the notification beyond that if the end use was insisted even that end use has been certified and as pointed out in the Tribunal’s order. - appeal does not raise any substantial question of law. - Decided against Revenue. 2015 (8) TMI 293 Recovery of dues from the successor - Liability of Purchaser of property for which dues were pending - Held that:- There was no embargo upon the erstwhile Company, M/s. Ram Shiv Industries Ltd., in selling its property to the petitioner. When the property was sold off on 11-2-2008 there were no Central Excise dues against the said Company. The dues came into existence after the Order-in-Original was passed by the excise authorities on 18-9-2008. Consequently, Section 142 of the Customs Act is not applicable in the instant case - running business of M/s. Ram Shiv Industries Ltd. was not transferred to the petitioner. Only land, building and old scraps of machinery was sold. The petitioner has not stepped into the shoes of the erstwhile Company nor has taken the liability of the erstwhile Company. We find support of this reasoning from a decision of the Supreme Court in the case of M/s. Rana Girders Ltd. v. Union of India - [2013 (8) TMI 540 - SUPREME COURT] wherein the Supreme Court held that where the buyer purchases the entire business only then he was liable for Central Excise Duty and not otherwise. - impugned notice demanding the Central Excise dues of M/s. Ram Shiv Industries Ltd. from the petitioner is wholly illegal and cannot be sustained and is quashed - Decided in favor of assessee. CST, VAT & Sales Tax 2015 (8) TMI 301 Challenge to assessment order - petitioner had failed to furnish 'F' forms - Held that:- There is ample power for the authority to grant extension of time. In the instant case, we find that there is justification for the authority to invoke the powers under the proviso to Rule 12(7) for the reason that the petitioner had to obtain the 'F' forms from Bihar State. - petitioner has an effective remedy by way of filing appeal as against the assessment order. We are not inclined to direct the petitioner to pursue the appeal remedy, as the reason given by the petitioner appears to be bona fide and the assessee in this case, at the first instance, has submitted original 'C and F' declaration forms on receipt of the notice. He also sought time for seeking rectification of the 'F' forms and has justified the reasons for the said non-submission. Therefore, there is every justification for the Writ Petitioner to seek indulgence of this Court to quash the impugned order, which has been passed without considering the sufficient cause shown by the assessee, which has caused prejudice only on account of delay in uploading the relevant declarations. - Matter remanded back - Decided in favour of assessee. 2015 (8) TMI 300 Reversal of input tax credit - Held that:- Admittedly, the petitioner received notices in respect of the assessment years in question dated 09.10.2014 and again the respondent has issued respective notices dated 12.01.2015 and finally, the petitioner was issued with the 3rd respective notices dated 24.04.2015. It is also an admitted position that the petitioner, after receipt of all these notices, appeared before the respondent on 13.02.2015 in person along with original invoices. When that be the case, it is not known why the petitioner has not gone before the respondent with a written reply. When the petitioner appeared before the respondent, in all fairness, he should have submitted his replies. - when the petitioner has received three notices on 09.10.2014, 12.01.2015 and 24.04.2015 for all the assessment years, finding that he has not filed any reply whatsoever to any one of the notices, this Court is of the view that the respondent is right in passing the impugned orders - Decided against assessee. Wealth tax 2015 (8) TMI 285 Validity of High Court's order - HC has decided the appeal without framing the question of law - Held that:- appeal under the Section 27A (3) of The Wealth Tax Act, 1957 can be admitted only when a substantial question of law is involved in the appeal and according to sub-Section (4), the question of law has to be formulated by the High Court. - matter is remitted to the High Court so that a substantial question of law can be framed, if any, and the appeal can be heard again. - Impugned order is set aside - Decided in favour of appellant.
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