Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
August 10, 2016
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Wealth tax
TMI SMS
News
Notifications
Customs
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44/2016 - dated
8-8-2016
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ADD
Seeks to levy provisional anti-dumping duty on Hot-rolled products of alloy or non-alloy steel imported from China, Japan, Korea RP, Russia, Brazil and Indonesia
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43/2016 - dated
8-8-2016
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ADD
Seeks to impose anti-dumping duty on the imports of Viscose Staple Fibre excluding Bamboo Fibre originating in or exported from People’s Republic of China and Indonesia for a period of five years
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42/2016 - dated
8-8-2016
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ADD
Seeks to impose anti-dumping duty on the imports of PVC Flex Film originating in or exported from the People's Republic of China for a period of five years
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41/2016 - dated
8-8-2016
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ADD
Seeks to finalize the provisional assessments in respect of imports of PVC Flex Film, originating in or exported from China PR by M/s Haining Tianfu Warp Knitting Co. Ltd., People's Republic of China (Producer) and M/s Manna, Korea RP (Exporter), at rate of anti-dumping duty imposed vide Notification No. 82/2011-Customs (ADD) dated 25th August, 2011 [and extended vide Notification No. 43/2015-Customs (ADD) dated 18th August, 2015]
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40/2016 - dated
8-8-2016
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ADD
Seeks to further amend notification No. 53/2011-Customs dated 01st July, 2011 so as to provide deeper tariff concessions in respect of specified goods imported from Malaysia under the India-Malaysia Comprehensive Economic Cooperation Agreement (IMCECA) w.e.f. 30.06.2016
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39/2016 - dated
8-8-2016
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ADD
Seeks to extend the levy of anti-dumping duty on imports of Sodium Nitrite, originating in, or exported from People’s Republic of China, (imposed vide notification No.46/2014-Customs(ADD), dated 8th December, 2014) for a period of one year i.e. upto and inclusive of the 16th August, 2017
Highlights / Catch Notes
Income Tax
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Accrual of income - Selection of year of assessment - the entire sum was received upfront in the year in question and TDS was also deducted on that basis - ITAT erred in concluding that the sum received in each of the AYs in question could be spread over five years on the basis of the subsequent agreements - HC
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In order to be eligible to claim exemption u/s. 80P(2)(a)(i), a co-operative bank need not carry on the business of banking only with its members. Income attributable to banking activities carried on with non-members will also be entitled to special deduction under this section - HC
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There is no requirement of a notice u/s 143(2) for completing an assessment u/s 153C and if that be so, the question of time limit prescribed u/s 143(2) does not have any relevance for assessments u/s 153C - HC
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MAT - the reserve created for unexpired risk need not be added back for the purpose of computation of book profits u/s 115JB of the Act. - AT
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Leakage of revenue - Any disallowance should be specific and properly quantified - presumptive and ad-hoc addition based on an outlandish consideration of plugging possible leakage or revenue deleted - AT
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TDS u/s 194J - license fees paid to IRCTC - even an iota of rendering any service is missing, when there is no service, there is no question of applicability of sec. 194J - AT
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Transfer pricing adjustment - royalty payment - rejecting the entire payment without there being any analysis cannot be accepted - AT
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Penalty u/s 271(1)(c)- additions u/s 68 - the contention of the assessee cannot be straightway rejected that such error may occur due to software problem - AT
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Taxability in India - Proportionate amount received for demobilization of vessels outside Indian territorial waters - the contracts entered into between the assessee and other parties, known as second leg contracts are eligible for benefits of tax treatment u/s 44BB - AT
Customs
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Rejection of application for conversion of the shipping bill filed under advance authorization scheme to shipping bill under Drawback scheme - while there is no time limit prescribed under Section 149, such application need to be made within reasonable time - AT
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No fee required to be paid for filing the appeal before the tribunal related to refund matter - AT
Central Excise
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Clearance of waste and scrap - the waste and scrap has arisen during repair and maintenance work of the capital goods. Some portion of the scrap has also arisen on account of dismantling old and used machinery - Demand of duty quashed - AT
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In as much as EOUs are entitled to take as well as utilize Cenvat credit on inputs as well as capital goods, for payment of duty on the DTA clearances, the demand of duty made in the impugned order, if paid, will be available as Cenvat credit to the 100% EOUs. - AT
Case Laws:
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Income Tax
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2016 (8) TMI 329
Accrual of income - Selection of year of assessment - tds liability - Cash system of accounting - ITAT appears to have proceeded on the basis that since the services were to be performed by each of the Assessees for over a period of five years, the amount received from UGHPL had to be spread over a period of five years - Held that:- There is merit in the contention of the learned counsel for the Revenue that since admittedly no books of accounts were maintained by any of the three Assessees it had to be presumed that they followed the cash system of accounting. In that view of the matter, the question of income accruing or the right to earn income accruing only upon the performance of a service at the end of a period would not arise. As rightly pointed out by learned counsel for the Revenue, the matching principle or the application of AS-9 issued by the ICAI which deals with the principle of revenue recognition appear to apply only to companies and not individuals. Once it is clear that it is the cash system of accounting that is followed, the further question whether the sum received in one year could be spread over several years, and that too in the absence of any agreement at the time of such payment would not arise. The ITAT could not have overlooked the fact that the agreements produced before the CIT (A) regarding engaging the Assessees as hospital consultant was more than four years after the amount had been paid. Such agreements were not reliable pieces of evidence. Assessees had offered to tax in the later AYs the sum proportionate to the period of service, the fact remains that the entire sum was received upfront in the year in question and TDS was also deducted on that basis. The agreements purportedly entered into between each of the Assessees and UGHPL was a document drawn up four years after they received the entire remuneration upfront in December 2005. Consequently, the Court is of the view that the ITAT erred in concluding that the sum received in each of the AYs in question could be spread over five years on the basis of the subsequent agreements dated 15th June 2010 between the UGHPL and the Assessees. Significantly, what the Trust was being paid was only a monthly payment whereas over a sum of ₹ 4 crores as lump sum payment was made to the Assessees. The questions raised by the CIT (A) do not appear to have been satisfactorily answered by the Assessees. In the facts and circumstances, the Court is of the view that the CIT (A) was right in affirming the order of the AO to the extent of bringing the entire amount received by the Assessees to tax in the year in question. For the aforementioned reasons the question framed is answered in the affirmative i.e. in favour of the Revenue and against the Assessees.
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2016 (8) TMI 328
Eligibility for deduction under section 80P - Income attributable to banking activities carried on with non-members - Held that:- On a plain reading of Section 80P(2)(a)(i) that a co-operative society engaged in carrying on the business of banking and a co-operative society engaged in the business of providing credit facilities to its members have been treated differently, and in that perspective the view taken is correct when they held that there was no reason why the conjunction ‘’or‘’ should be read as ‘’and’’. In the case of Commissioner of Income Tax, Kolkata – XVIII vs. Contai Cooperative Bank Limited question arose whether interest earned by the co-operative bank on non-statutory deposit was deductible. That question was answered by this Bench in the affirmative. For the aforesaid reasons, we are of the opinion that the learned Tribunal has taken a correct view of the matter that in order to be eligible to claim exemption u/s. 80P(2)(a)(i), a co-operative bank need not carry on the business of banking only with its members. Income attributable to banking activities carried on with non-members will also be entitled to special deduction under this section. - Decided against revenue
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2016 (8) TMI 327
Assessment under section 153C - requirement of a notice under section 143(2) - Held that:- As there is no requirement of a notice under section 143(2) for completing an assessment under section 153C and if that be so, the question of time limit prescribed under the proviso to section 143 (2) does not have any relevance for assessments under section 153C. Therefore, that finding of the Tribunal that the assessments for the years 2001-02, 2003-04, 2004-05 and 2005-06 are terminated/concluded by operation of law and that the assessee cannot be re-assessed under section 153C is untenable and is set aside.
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2016 (8) TMI 326
Addition made on account of provision for IBNR as ascertained liability - whether the the same need not be added back to book profits computed u/s 115JB? - Held that:- We find that the ld CITA had given a categorical finding that the provision made for liabilities incurred but not reported (IBNR) made by the assessee as per the regulations framed by Insurance Regulatory Development Authority (IRDA) based on a scientific calculation with a proper rationale could only be termed as ascertained liability. Hence the same need not be added back by treating the same as an unascertained liability while computing the book profits u/s 115JB of the Act. The revenue was not able to controvert the findings given by the ld CITA before us. Hence, we find no infirmity in the order of the ld CITA in this regard and accordingly dismiss the Ground raised by the revenue - Decided in favour of assessee. Addition made on account of provision for unidentified motor third party claim as ascertained liability - whether the the same need not be added back to book profits computed u/s 115JB? - Held that:- The provision created on account of unidentified Motor Third Party claim will not fall under sub section 115JB(2)-Explanation 1 (c) of the Act. Therefore, no addition is required while computing the tax liability u/s 115JB of the Act. Hence, we set aside the orders of the revenue authorities on this issue and direct the Assessing Officer not to make any adjustment on account of the provision under unidentified Motor Third Party claim while computing the tax liability u/s 115JB of the Act. - Decided in favour of assessee. Interest u/s 234B and 234C of the Act - whether interest should not be charged on account of addition to the total income due to retrospective amendment? - Held that:- In a case like the present one where on the last date of the Financial Year preceding the relevant assessment year, the assessee had no liability to pay advance tax, he would be nevertheless asked to pay interest in terms of section 234B and section 234C of the Act for default in making payment of tax in advance which was physically impossible.- Decided in favour of assessee. Disallowance of Employees Contribution to Provident Fund - Held that:- As decided in assessee’s own case for Asst Year 2001-02 we are of the view that since the assessee has credited both employees’ as well as employers’ contributions to the individual accounts of the employees on the date of recovery of the provident fund in our opinion assessee fulfils the requirements mentioned u/s. 36(1)(va). Therefore we set aside the orders of the revenue authorities on this issue and direct AO to give relief - Decided in favour of assessee. Disallowance of Amortisation of Premium paid on Purchase of Investments - Held that:- If the particular item of dispute (debit entry made in the profit and loss account) falls under the category of ‘expenditure’ or ‘allowance’ or ‘provision’ and the same is not admissible under the Act, only then the concerned item can be added back in computing the income from general insurance business. From the above facts, it is clear that the disallowance of amortised premium paid on investments made by the ld AO is not in accordance with the prescribed specific procedure in the assessee’s case. The ld CITA duly appreciated the contentions of the assessee deleted the dis allowance correctly. SEE case of General Insurance Corporation of India vs CIT reported in (1999 (9) TMI 3 - SUPREME Court) and CIT vs Oriental Fire & General Insurance Co Ltd [2007 (5) TMI 193 - SUPREME Court ]- Decided in favour of assessee. Disallowance of Investments written off - Held that:- It is observed that in the above-referred Rule 5 of the First Schedule it has been mentioned that certain expenditure or allowance or provision can be added back only if the same is not admissible under sections 30 to 438 of the Act and there is no specific mentioning of adding back of any amount written off out of investments. From the above-referred Supreme Court decisions it is clear that if the particular item of dispute (debit entry made in the Profit & Loss Account) falls under the category of "expenditure" or "allowance" or "provision", and the same is not admissible under the Act, only then the concerned item can be added back in computing the income from general insurance business. From the above facts it appears that the disallowance of the writing off of investments, made by the Assessing Officer is not in accordance with the prescribed specific procedure in the appellant's case. - Decided in favour of assessee. Disallowance of Provision for Bad & Doubtful Debts - Held that:- We find that strangely the revenue had preferred an appeal against this ground which is not warranted when the issue was decided by the ld CITA in favour of the revenue. - Decided in favour of assessee. Addition towards Reserve created for Unexpired risk u/s 115JB - Held that:- We find that the ld CITA had dealt this issue very elaborately and had given proper finding that the reserve created for unexpired risk need not be added back for the purpose of computation of book profits u/s 115JB of the Act. The revenue was not able to controvert the findings of the ld CITA before us. Hence we find no infirmity in the order passed by the ld CITA in this regard - Decided in favour of assessee.
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2016 (8) TMI 325
TDS u/s 194J - license fees paid to IRCTC (Indian Railway Catering & Tourism Corporation) due to non deduction of tax from the payment - Held that:- The license fee is paid consequent to regular system devised by IRCTC which calls for tenders offering the license for food catering rights on passenger trains on a particular train route. The successful bidders are given licenses against payment of license fee and the contractee renders the services not IRCTC. The tenders, license and payment of license fee are a part of a routine and regular legal process as approved by Railway Ministry for everyone at large. There is neither any skill, special knowledge or element of service involved in discharge of this legal obligation. IRCTC neither deputed as any special personnel to render any service to assessee. In these circumstances even an iota of rendering any service is missing, when there is no service, there is no question of applicability of sec. 194J as contemplated by ld. AO. Assessee’s licence fee payments to IRCTC were not liable for TDS and cannot be disallowed u/s. 40(a)(ia). - Decided in favour of assessee Treatment to Embezzlement loss - Held that:- The embezzlement claim of the assessee is genuine, legal and the loss there from is allowable. Revenue takes a stand that the assessee should have claimed the entire loss in AY 2010-11. Per contra, the assessee claims that some ray of hope was remaining to recover the part of the amount and to be on a safer side and its commercial wisdom, it was felt expedient to claim 30% for AY 2010-11 and 70% in AY 2011-12. Revenue has no objection in allowing the entire loss in AY 2010-11. This rather proves the assessee’s contention that instead of claiming in one year, by a prudent business decision it was decided to bifurcate the loss as a ray of partial recovery existed. In any case, the embezzlement amount was due from the said employee-manager Shri Rajesh Joshi. Therefore, alternatively, it becomes a debt due from Shri Rajesh Joshi, consequently, the amount is allowable either as embezzlement loss and when ray of partial recovery faded out; relevant bad debt is actually written off and thirdly as a business loss. Thus the embezzlement loss should be allowed in this year. In view of Hon’ble Supreme Court judgment in the case of Excel Industries Ltd (2013 (10) TMI 324 - SUPREME COURT) also, there is no prudence in not allowing the claim in this year and giving a direction to allow in AY 2010-11. In cumulative consideration of all these facts and circumstances, legal position and substantial justice, we have no hesitation in allowing the claim in this year as claimed by the assessee. - Decided in favour of assessee Leakage of revenue - Held that:- We have heard both the parties and are of the firm view that there is no concept of plugging any possible leakage of revenue which becomes a general and sweeping way of disallowance not contemplated by the law. Any disallowance should be specific and properly quantified. In view of these facts, we are unable to sustain this presumptive and ad-hoc addition based on an outlandish consideration of plugging possible leakage or revenue; consequently the same is deleted. Thus, this ground of the assessee is allowed and that of revenue dismissed. Addition u/s 40A - Held hat:- Cash payments are made in exceptional circumstances and the same are covered by Rule 60DD and cannot be disallowed u/s 40A(3). Unexplained expenditure u/s 69C - purchases which have not been effected due to non-delivery of goods - Held that:- The assessee cannot adopt such a self defeating approach, human conduct, surrounding circumstances and business exigencies on a moving train; the contention of the assessee is reasonable and acceptable and cannot be disregarded on presumption. In moving train, it may happen that the bill is given to the moving train staff and goods will not reach in time and payment is not given due to non-delivery, i.e., non-purchase. In view of the foregoing, we delete this disallowance. Thus, this ground of the assessee is allowed
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2016 (8) TMI 324
Transfer pricing adjustment - royalty payment - Held that:- It it is not necessary for the assessee to show that any legitimate expenditure incurred by him was also incurred out of necessity. It is also not necessary for the assessee to show that any expenditure incurred by him for the purpose of business carried on by him has actually resulted in profit or income either in the same year or in any of the subsequent years. The only condition is that the expenditure should have been incurred “wholly and exclusively” for the purpose of business and nothing more. The TPO has no role to play in examining the decision of commercial nature. Under the guise of TPO provisions, the TPO cannot determine the ALP at NIL as held by the Hon'ble Delhi High Court in the case of EKL Appliances Ltd., {2012 (4) TMI 346 - DELHI HIGH COURT }. Therefore, rejecting the entire payment without there being any analysis cannot be accepted. In the instant case, the TPO did not examine the arms length price of the impugned royalty payment in accordance with the provisions of Sec.92C of the Act. Accordingly, we are of the opinion that the ALP of the impugned payment for royalty has been wrongly determined as NIL by the TPO and the issue needs to be examined afresh. Accordingly we set aside the order of Assessing Officer/TPO on this issue and restore the same to the file of the TPO for examination of the same afresh in accordance with the law, after affording opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes.
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2016 (8) TMI 323
Penalty u/s 271(1)(c)- addition made under section 68 - Held that:- The appellant has shown correct business income in their return of income. He has not filed any inaccurate particulars of income because in the computation part, the income has been shown correctly and no such ambiguity is pointed out therein. Schedule CYLA and BFLA is with respect to the adjustment of income as per provisions of the IT Act. The assessee has also filed return for the assessment year 2008-09 in which also, the assessee has not taken any benefit of the above amount of difference of ₹ 7,86,721/-. In presence of these facts, in our considered opinion, the contention of the assessee cannot be straightway rejected that such error may occur due to software problem. We, therefore, find that the assessee is not liable for penalty for furnishing inaccurate particulars of income in the peculiar facts and circumstances of the present case. As a result, the appeal of the assessee is found to have merit - Decided in favour of assessee.
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2016 (8) TMI 322
Taxability in India - Proportionate amount received for demobilization of vessels outside Indian territorial waters to be included in the gross receipts u/s 44BB - As per assessee this income is not chargeable to tax in India as per section 5 read with section 9 of the Act - Held that:- This issue has already been decided by the Hon’ble High Court in case of Sedco Forex International Inc. vs. Commissioner of Income-tax [2007 (9) TMI 196 - UTTARAKHAND HIGH COURT ] against the assessee, so the ld. CIT (A) has rightly held that mobilization charges constitute part of the gross receipts of the assessee as per provisions contained u/s 44BB - Decided against revenue Receipts from non-PSC Partners on account of supplies of plant and machinery on hire - whether not eligible for treatment under presumptive provisions of section 44BB - Held that:- Issue has already been determined in favour of the assessee in its own case qua AYs 2004-05, we find no illegality or perversity in the findings returned by the ld. CIT (A) reversing the order passed by the AO as to the holding the assessee’s revenue on account of equipment rent under contract with non-PSC Partners taxed u/s 44DA of the Act. So, we are of the considered view that the contracts entered into between the assessee and other parties, known as second leg contracts are eligible for benefits of tax treatment u/s 44BB of the Act. - Decided against revenue
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2016 (8) TMI 321
Applicability of section 164 Explanation 1(ii) - whether the Trust is assessable at maximum rate? - Held that:- Our attention is invited to Annexure 'B' to the statement of case i.e. the Assessment Order dated 21st March, 1983 passed in respect of the trust as an AOP. The Assessment Order determined the total income at ₹ 1.54 lakhs, while categorically holding that no demand is payable by the Trust as the income of the Trust is divided amongst the beneficiaries as per the Trust Deed. Consequently, the tax was recoverable from the beneficiaries of the Trust. Therefore, the option as provided under Section 166 of the Act was exercised by the Revenue. This option is available even in case of discretionary Trusts. Therefore, even in case the Revenue's contention is upheld on merits, it would not yet exclude the application of option in Section 166 of the Act which in this case has already been exercised. Therefore, the substantial question of law as raised for our opinion is being returned unanswered as it has now became academic in view of the decision of the Apex Court rendered in Jyotendrasinhji (1993 (4) TMI 1 - SUPREME Court ). The above decision was rendered after the making of the statement of case along with the question of law framed by the Income Tax Appellate Tribunal for our opinion.
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2016 (8) TMI 320
Finance company within the meaning of Section 2(5B) of the Interest Tax Act - Held that:- The principle business of the assessee was in either of the two activities i.e., hire purchase loan business of investment business, the individual activity being less than 50%. The combined percentage of these two activities is 58.67% but by virtue of definition of clause (vi) of the residuary definitions of the Finance Act in section 2(5B), for a miscellaneous finance company, that is to say, a company which carries on exclusively or almost exclusively two or more classes of businesses referred to in the preceding sub-clauses. The percentage of the two activities which is 58.67%, cannot be said to be exclusively or almost exclusively. Therefore, it will not be a miscellaneous company within the meaning of clause (vi) of section 2(5B) of the Act. There is no other provision which is stated to be applicable to the assessee. In these circumstances, it is right in holding that the assessee was not a finance company and not liable to interest tax Act. Appellate tribunal is right in law and on facts in holding that the assessee company is not a finance company within the meaning of Section 2(5B) of the Interest Tax Act
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2016 (8) TMI 319
TDS u/s 194C - addition invoking the provisions of the section 40(a)(ia) of the Act in respect of payments made towards labour charges without deducting TDS - outstanding balance at the end of the close of the year - Held that:- Considering assessee's submittion that the impugned amount is already paid and nothing is outstanding at the end of the close of the assessment year under consideration. He relied on the judgement of the Special Bench of the Tribunal in the case of Merilyn Shipping and Transports v. Addl. CIT [2012 (4) TMI 290 - ITAT VISAKHAPATNAM ] . Also see Shri. N. Palanivelu, Prop. M/s. Nagamalai Textiles Versus The Income Tax Officer, Ward II (1) , Salem [2015 (10) TMI 1415 - ITAT CHENNAI ] wherein held if the impugned amount is not outstanding at the end of the close of the assessment year in respect of the expenses either as outstanding expenses or as sundry creditors, this amount cannot be disallowed. In view of this we are inclined to remit the issue to the file of AO to examine whether the impugned amount is outstanding at the end of the close of the assessment years under consideration and decide in the light of above order of the Tribunal. - Decided in favour of assessee for statistical purposes.
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2016 (8) TMI 318
Penalty u/s 271(1)(c) - difference in purchases - Held that:- The fate of the quantum assessment proceedings is not before us but even in the penalty proceedings u/s 271(1)(c) of the Act, if the fact-situation establishes non-maintainability of a particular addition, then, to the extent of the levy of penalty, the same can be considered appropriately. In the present case, we find that the explanation of the assessee was very much before the lower authorities and, in fact, assessee had moved an application seeking rectification of mistake u/s 154 of the Act and there is no material on record to negate the assertions put forth by the assessee. Therefore, in view of the fact-situation canvassed by the assessee, we deem it fit and proper to hold that no penalty u/s 271(1)(c) of the Act is leviable with respect to a sum on account of difference in purchases, as such addition is itself unsustainable. However, as fairly put-forth by the learned representative for the assessee, the un-reconciled balance of purchases to the extent of ₹ 75,302/- would be exigible to penalty u/s 271(1)(c) of the Act. Thus, on this aspect the Assessing Officer is directed to rework the amount of penalty u/s 271(1)(c) of the Act. Disallowances of balances written off - Held that:- Disallowances relates to amounts written-off by the assessee which are capital in nature. No doubt, the claim of such write-off is not tenable in the eyes of law but we find that the relevant discussion in the assessment order does not reflect any filing of inaccurate particulars or concealment by the assessee. A mere non-acceptance of a claim made in the return of income by itself does not justify the penal provisions of Sec. 271(1)(c) of the Act. As a consequence, we set-aside the order of CIT(A) on this aspect and direct the Assessing Officer to delete the levy of penalty with respect to the aforesaid addition. Dividend earned by the assessee from Saraswat Co-op. Bank - exemption in terms of Sec. 10(34) denied - Held that:- Every case of a wrong claim cannot invite penalty u/s 271(1)(c) of the Act, especially in the present case where there is no material to suggest any concealment or furnishing of inaccurate particulars of income. In fact, apart from the fact that the exemption has been denied, the discussion in the assessment order does not reveal that the assessee had filed any particulars of income which were found to be wrong or otherwise false. Therefore, following the ratio of the judgment of the Hon'ble Supreme Court in the case of Reliance Petroproducts (P) Ltd,[2010 (3) TMI 80 - SUPREME COURT ] penalty on this aspect of the addition is also directed to be deleted. Appeal decided partly in favour of assessee
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2016 (8) TMI 317
Addition on account of difference in purchases made - Held that:- The assessee duly reconciled the purchase of accounts. In addition to the above the assessee furnished further details and evidences to clear all the doubts which were duly considered by Ld. CIT(A) and detailed findings have been recorded, accepting the claim of the assessee that purchase are duly reconciled. Thus, after taking into account all the facts and evidences it was held by the Ld. CIT(A) that there was no difference. Accordingly, it was held that books of accounts were wrongly rejected by the AO. It was further held by the Ld. CIT(A) that if there were some unpaid amounts which were disallowable u/s 43B then the same can be made by the AO and for this purpose the issue has been sent back to the file of the AO. Under these circumstances, we find that Ld. CIT(A) has been quite fair and justified while addressing all the issues that were raised by the AO and the assessee. It is further noted by us during the course of hearing before us that Ld. DR could nor point out anything incorrect or wrong in the detailed findings recorded by the Ld. CIT(A) and therefore, we do not find any justification to make any interference in the order of the Ld. CIT(A) and the same is therefore upheld. - Decided against revenue Disallowance made on account of 1/3rd of various expenses - Held that:- It is noted that books of accounts were produced by the assessee before the AO. But he was not satisfied with regard to the supporting evidences filed by the assessee and accordingly he made disallowance @ 1/3rd of the total expenses on estimate basis. During the course of hearing before us it was brought to our notice that in A.Y. 2008-09, disallowance has been made @ of 10% of these expenses which are identical in nature. Thus, taking into account all facts and circumstances of the case, we direct the AO to reduce the disallowance @ 10% of ₹ 35,59,716/- which comes to ₹ 3,55,972/-, the remaining disallowance is directed to be deleted. - Decided partly in favour of assessee
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2016 (8) TMI 316
Eligibility of deduction under Section 80IB(10) - necessity of ownership of the land - Held that:- We find that the Hon’ble Gujarat High Court in the case of CIT vs. Radhe Developers (2011 (12) TMI 248 - GUJARAT HIGH COURT ) has held that the provisions nowhere required that only those developers who themselves own the land would receive the deduction under Section 80IB(10) of the Act. Neither the provisions of Section 80IB nor any other provisions contained in other related statutes demonstrate that ownership of the land would be a condition precedent for developing the housing project. Such requirement cannot be read into the statute because there is nothing under Section 80IB(10) of the Act requiring that ownership of the land must vest in the developer to be able to qualify for such deduction. We, therefore, find that the order of the CIT(A) is supported by the order of the Hon’ble jurisdictional High Court. Hence, we do not find any infirmity in the order of the CIT(A) which is hereby confirmed and the grounds of appeal of the Revenue are dismissed. - Decided in favour of assessee
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2016 (8) TMI 315
Disallowance u/s. 40A(3) - proof of payment of expenditure through banking channel - Journal entries - Held that:- We find that the ld. CIT(A) has deleted disallowance of ₹ 21.50 lacs as made by the Assessing Officer u/s. 40A(3) of the act by concluding that the same does not apply. He holds that the assessee has made FDR payment of ₹ 1 lacs over and above that agreed with the vendor and the same is not allowable as business expenditure. We find that the CIT(A) takes note of the case that the assessee has made payments of ₹ 20 lacs on 14-05-2012 and 15-05-2012 to Shri Kurkutia as land development expenses. He also placed on record relevant ledger account to prove that the same are paid through banking channel. This prima-facie rebuts case of the lower authorities that there was no land development agreement between assessee and his payees. We further notice that these ledger account could not be produced before the CIT(A) in course of the lower appellate proceedings. We feel it appropriate in larger interest of justice that the ld Assessing Officer needs to re-adjudicate the entire issue in view of all these developments as per law after affording adequate opportunity of hearing to the assessee.
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2016 (8) TMI 314
Eligibility of deduction u/s. 80IB(10) - denial of clam for the reason that assessee was not the owner of the land, the permission was not received by the assessee and according to AO assessee was mere a “Contractor” who had entered into a development agreement with the land owners for the construction of the housing project - Held that:- We find that the ld.CIT(A) after considering the development agreement and the decisions rendered in the case of Radhe Developers (2011 (12) TMI 248 - GUJARAT HIGH COURT ) has given a finding that the facts in the present case of the assessee are identical to the case dealt with by the Hon’ble Gujarat High Court and he therefore relying on the decision cited in his order has allowed the claim of assessee. Before us, Revenue has not placed any contrary binding decision in its support. In view of the aforesaid facts, we see no reason to interfere with the order of the ld.CIT(A) - Decided in favour of assessee
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2016 (8) TMI 313
Addition on account of cash deposited in the bank account - Held that:- In the present case, it is noticed that out of the addition of ₹ 3,94,900/- sustained by the ld. CIT(A) a sum of ₹ 1,54,900/- was the opening cash balance which was brought forward by Smt. Sunita Sharma in her cash book, so, the said amount was not pertaining to the year under consideration and cannot be added. The another addition of ₹ 40,000/- was sustained for the deposits on 03.04.2009. However, on the perusal of the bank account, it is noticed that there was no such deposits on 03.04.2009. However, there was cash deposit of ₹ 40,000/- on 13.04.2009. It, therefore, appears that the date was wrongly mentioned by the ld. CIT(A) in the impugned order because the observations of the AO in the assessment order was that a sum of ₹ 40,000/- was deposited on 13.04.2009 for which no source of deposit was shown in cash flow statement and in the copy of the cash book also. In opinion, if no such entry had been shown, the addition to that extent deserves to be sustained. Accordingly, addition of ₹ 40,000/- is sustained. The another addition of ₹ 2,00,000/- was sustained by the ld. CIT(A) on account of house hold expenses out of the cash withdrawals. In opinion, the said addition was not sustainable, particular when nothing was brought on record to substantiate that out of the withdrawals an amount to the extent of ₹ 2,00,000/- were used by the wife of the assessee for incurring house hold expenses. In view of the above discussion the addition to the extent of ₹ 40,000/- is sustained and the remaining addition of ₹ 3,54,900/- is deleted.
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2016 (8) TMI 312
Assessment order u/s 153A/143(3) - addition u/s 68 - Held that:- The instant appeal it is undisputed that the impugned additions were made by the Assessing Officer without there being any finding that the additions related to any seized material. There is no iota of any reference to any incriminating material in the assessment order u/s 153A/143(3) and therefore following the ratio laid down by the Hon'ble Delhi High Court in CIT Central-III vs Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT), we allow the CO of the assessee and quash the assessment order passed u/s 143(3)/153A. - Decided in favour of assessee.
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2016 (8) TMI 311
Levy of penalty u/s 271(1)( c) - benami bank account possession - Held that:- It is undisputed that the assessee filed the original return on 5-06-2006 which was selected for scrutiny u/s 143(2) of the Act by notice dtd. 21-06-2007. The ld. AR of the assessee could not reply to the query of the Bench as to what was the date of hearing fixed by notice u/s 143(2) of the Act. According to him, it was a routine notice. The revised return of income was filed on 16-10-207 i.e. after 04 months from the date of u/s 143(2) notice. Neither the ld. AR of the assessee nor the ld. DR could inform the date of hearing fixed by the said notice, any hearing or the information of Benami account with ld. AO. Thus the contention of the assessee that there was no information in the possession of Department about benami account could not be verified. Besides, in considered view the issue needs to be restored to the file of the ld. CIT(A) and as according to the assessee penalty appeals for the assessment years 2004-05 and 2005-06 are pending for decision. I am of the considered opinion that the relevant facts and the issue of imposition of penalty should be decided together with earlier years. It should be duly verified from record whether any information, inquiry or query about Benami bank a/c preceded filing of the revised return by the assessee and whether owning up the said benami account was prompted by good intention or due to some information in possession of the Department. In view of the above, it is deemed just and proper that ld. CIT(A) shall decided all the appeals together afresh. - Decided in favour of assessee for statistical purposes.
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Customs
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2016 (8) TMI 342
Rejection of application for conversion of the shipping bill filed under advance authorization scheme to shipping bill under Drawback scheme – delay in filing application for conversion was more than three year – Held that: - while there is no time limit prescribed under Section 149, such application need to be made within reasonable time – amendment not allowed – appeal dismissed – decided in favor of revenue.
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2016 (8) TMI 341
Refund - maintainability - fee for filing appeal - Held that: - no fee required to be paid for filing the appeal related to refund matter. decided in case Glyph International ltd. Vs. Commissioner of Central Excise & Service Tax [2013 (8) TMI 17 - CESTAT NEW DELHI] - appeal admitted - regular hearing.
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2016 (8) TMI 340
Confiscation – baggage – gold bars brought from abroad without declaration – during the process of frisking two gold bars found – seizure – liable to confiscation – Held that: - respondents had been working abroad in Saudi Arabia for the last 14 months the quantity of gold is not a commercial quantity which cannot be said to be a quantity which the respondents could not purchase and import into India from their savings out of their earnings. Further, the respondents could have imported gold up to 1 Kg each subject to proper declaration. Thus a case of non-declaration is made out at best, against the respondents – the penalty imposed on the respondents, is adequate – appeal of revenue dismissed.
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2016 (8) TMI 339
Concessional rate of duty - prawn feed - prawn imported in micro-encapsulated form - exemption claimed under notification no.21/2002 - (S.No.56)- vitamin pre-mixes - product to be in pellet form - Held that: - A clear finding as to the form of import, whether in pellet form has to be recorded with supporting evidence. Vitamins, one or more of them, present in the prawn feed not exceeding the proportion will satisfy the condition of the notification or not - pleading of the appellant are to be dealt with for acceptance or rejection with reason - matter remanded - A reasoned and speaking order shall be passed at the earliest.
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2016 (8) TMI 338
Condonation of delay – principle of natural justice - delay due to confusion as to the appeal remedy – Held that: - no proposal for penalty under section 114 of the Customs Act, 1962. There was violation of natural justice to impose penalty under section 114 at a subsequent stage. Law specifically requires the ld. Commissioner (Appeals) under proviso to Section 128A (3) of Customs Act, 1962, to issue notice where enhancement of any penalty is proposed following the course of natural justice – Order does not sustain – appeal allowed.
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Corporate Laws
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2016 (8) TMI 331
Winding up order - Whether the respondents though being aware of passing of winding up order dated 17-10-2003 are guilty of not handing over the possession of the record/ books of account to the OL on passing of the order of winding up thereby intentionally stalling the winding up proceedings and causing loss to the company's creditors? - Held that:- From the evidence on record it indeed transpires that subsequent to winding up order dated 27-10-2003 books of accounts of the respondent company were not handed over to the Official Liquidator. The counsel for the Official Liquidator has submitted that it was so done intentionally with the object to stall the winding up proceedings and cause loss to the creditors of the company in liquidation. Counsel for the respondent directors has submitted that the record of the company in liquidation were lodged at the registered office/ factory premises SP-9-B Khushkhera Industrial Area Alwar, which was taken over without notice by RIICO in exercise of its powers under Section 29 of the State Financial Corporation Act, 1951 on 25-11-2003. It is not in dispute that the registered office of the company in liquidation was the factory premises i.e. SP-9-B Khushkhera Industrial Area Alwar, where the books of accounts and other record of the company were to be kept as required by law. In the circumstances it is not incredible, as stated by the respondent directors that the books of accounts of the respondent company were at the registered office of the company. In the circumstances it cannot be discounted altogether that the respondent directors did not have the possession of the books of accounts and other record subsequent to possession being taken over by RIICO on 25-11-2003. As far as the issue of non filing of statutory returns by the respondent directors qua affairs of the company is concerned, I am of the considered view that this deficiency would be covered under Section 541 of the Act of 1956 and not be a matter of enquiry under Section 543 of the Act of 1956, which is in nature tortuous liability of the directors responsible for misfeasance, malfeasance or breach of trust. Consequently issues 1 to 4 are decided against the official liquidator. Guilty of retaining the current assets and the surplus amount belonging to the company thereby causing breach of trust and loss to the company - Held that:- From the evidence on record it is apparent that allegation against the respondent directors with regard to retaining current assets of ₹ 27,70,972.57 and surplus amount of ₹ 33,68,471/- aggregating to ₹ 61,39,443.57 are based on the balance sheet of 31-3-1997 without reckoning for working of the company now in liquidation upto 1-10-1998. The Official Liquidator failed to discharge the burden on this count, more particularly with regard to specific action of the two directors. Evidence on record reflects that no enquiry from the respondent directors was made either by the Official Liquidator or the Chartered Accountant appointed by him only deductive inferences from the basis of allegations insufficient for discharge of the burden of proof on the Official Liquidator with reference to this issue are sought to be made. The liability under Section 543 of the Act of 1956 is inter-alia quasi criminal and thus one charged of misfeasance, malfeasance and/ or breach of trust is entitled to all protection and safeguards/ rights as in criminal jurisprudence including the benefit of doubt. Clear cut proof of the allegations made is required and tortuous liability under Section 543 cannot be based on surmises and conjectures alone.\ Whether RIICO had taken over the possession of the fixed assets only, not the books of accounts and records of the Company ? - Held that:- A wholistic reading of the evidence on record with regard to taking over assets of the company in liquidation by RIICO indicates that assets had been taken over by RIICO in absence of the respondent directors or their nominee, and the inventory was also drawn in their absence. Further this fact is also recorded in para No.10 of the report of the Chartered Accountant dated 20-9-2008. Evidence on record indicates that the Official Liquidator has not produced any witness from RIICO to support the contention of taking over possession of the assets of the company in liquidation by RIICO on 25-11-2003 to prove the fact that nothing except the fixed assets was available or found by RIICO at the relevant time. Consequently the issue No.6 is also decided against the Official Liquidator. Whether the application filed under Section 543 by the O.L. is maintainable in the absence of any specific allegations against the Ex-Directors/respondents ? - Held that:- No case of misfeasance, malfeasance or breach of trust is made out against the respondents Pawan Kumar Lath and Bimal Kumar Lath Ex-Directors of the company in liquidation. Consequently issue No.7 is decided in favour of the respondent directors and against the Official Liquidator.
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Service Tax
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2016 (8) TMI 354
Cenvat credit - GTA service – reverse charge mechanism – output service – GTA service to be considered as output service – availability of cenvat credit – Held that: - Goods Transport Agency services availed under clause (zzp) of clause 105 of section 65 of the Finance Act, 1994 was excluded from the purview of output services only w.e.f. 1.3.2008 by issue of Notification No. 10/2008-CE (NT). After omission of the explanation, the possibility of the services received to be considered as an output service no longer remained – no penalty imposed – appeal partly allowed.
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2016 (8) TMI 353
Taxable service – erection of transmission towers – Held that: - Central Government of India by notification 45/2010-ST dated 20.07.2010 had issued a 11D notification holding that for the services rendered up to 21.06.2010 in relation to transmission of electricity and distribution of the same, service tax liability does not arise. The period involved is 2005-06 to 2007-08 – decided against the Revenue.
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2016 (8) TMI 352
Cenvat credit - Allowability - Outward transportation - Appellant discharged service tax liability under GTA services - Held that:- the outward transportation of finished goods manufactured by the appellant would fall within the definition of input service and therefore credit availed by them cannot be denied. If the intention was to deny the credit in respect of outward transportation of finished goods then the same could have been specifically excluded in the definition itself, which however has not been done. Further, if the intention was to deny the credit in respect of outward transportation then there was no need to include the words clearance of the final products from the place of removal in rule 2(l) of the rules relating to the definition of input services. Therefore, by considering the definition of input service in the Cenvat Credit Rules and the decisions of the higher judicial fora the service tax paid on transportation of finished goods from the factory to the premises of the customers can be taken as CENVAT Credit by the appellant and therefore, the denial of the same is not legal and proper. - Decided in favour of appellant
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Central Excise
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2016 (8) TMI 350
Rectification of mistake - 3 issues raised but only two were decided - Issue not decided was demand of SAD on value of goods transferred from appellant's EOU Unit to different C&F agents in different states - sales tax paid at the time of sale - Appellant submitted that no SAD was payable - Held that:- it is evident from the record that though the appellant had raised the issue that no SAD is payable on goods stock transferred to other states, however, no finding with respect to this was recorded in the Final order dated 20.07.2015. Further, there is no dispute on merit regarding admissibility of this claim of the Appellant as the Department has already accepted the correctness of the same in its comments/ verification report. therefore, the applications for rectification of mistake filed by the appellant have to be allowed. - ROM allowed
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2016 (8) TMI 349
Cenvat credit - availability - duty paid on various iron and steel items used for fabrication of capital goods - Held that:- the issue stand covered by the recent decision of Hon'ble High Court of Gujarat in the case of Mundra Ports & Special Economic Zone Ltd. vs. CCE & Cus [2015 (5) TMI 663 - GUJARAT HIGH COURT] and by the precedent decision of same assessee's case. Therefore, in any case, even if the said items are held to be used as supporting structures, the cenvat credit cannot be denied. - Decided against the revenue
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2016 (8) TMI 348
Demand - Default in monthly payment of duty which was paid belatedly - Contravention of provisions of Rule 8(3A) of Central Excise Rules 2002 - Held that:- the issue is no more res integra and stands settled in favour of the appellant. By following the law laid down by the Honb'le High Court of Gujarat in the case of Indsur Global Ltd. Vs. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT], which was subsequently followed by the same High Court in the case of Shreeji Surface Coatings Pvt. Ltd. Vs. Union of India [2014 (12) TMI 656 - GUJARAT HIGH COURT] and thereafter followed by the Madras High Court in the case of A.R. Metallurgicals P Ltd. Vs. CESTAT, Chennai [2015 (5) TMI 661 - MADRAS HIGH COURT] and also followed by the Tribunal in the case of Neesa Infrastructure Ltd. Vs. CCE and Om Shakthi Hydraulics Pvt. Ltd. Vs. CCE, Bangalore-II [2016 (5) TMI 838 - CESTAT BANGALORE], the impugned order is unsustainable in law and set aside. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 347
Demand - Clearance of waste and scrap - Availment of Cenvat credit without payment of duty - Demand confirmed by various authorities below on the ground that the waste and scrap has arisen from mechanical working of metal and hence, properly classifiable under Chapter Heading 7204.90 and therefore, liable to payment of duty. Held that:- the confirmation of demand has been done by travelling beyond the grounds made in the show cause notice and hence cannot be upheld on account of violation of principle of natural justice. The appellant has contended that the waste and scrap has arisen during repair and maintenance work of the capital goods. Some portion of the scrap has also arisen on account of dismantling old and used machinery. It is also well settled that scrap arisen in such cases will not be liable to payment of excise duty as has been held by this Tribunal in many cases. - Decided in favour of appellant
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2016 (8) TMI 346
Demand - Revarsal of Cenvat credit under Rule 3(5) of the Cenvat Credit Rules, 2004 - Reorganization of part of assets of DTA into 100% EOU - Capital goods in which Cenvat credit was availed in the original DTA unit was segregated as part of the two EOUs - Held that:- Rule 3(5) of the Cenvat Credit Rules contemplates payment of an amount equal to the credit availed in respect of inputs and capital goods when such goods are removed as such from the factory. The thrust of the appellant’s argument is that the removal contemplated in the above Rule is the physical removal, of the inputs or capital goods on which credit is taken, from the factory of the manufacturer. In the present case in as much as the inputs and capital goods were not removed physically from the factory, the mischief of Rule 3(5) will not be invited. Also the issue is no longer res-integra in as much as identical issue has been considered time and again and decided in favour of the appellants by this Tribunal. Hence, in as much as EOUs are entitled to take as well as utilize Cenvat credit on inputs as well as capital goods, for payment of duty on the DTA clearances, the demand of duty made in the impugned order, if paid, will be available as Cenvat credit to the 100% EOUs. - Decided in favour of appellant
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2016 (8) TMI 345
Excisability - Aluminium Dross and Skimming - arose during course of manufacture of aluminium - Held that:- the issue is no longer res-integra and decided by the Tribunal in respondent's own case which squarely settled the matter in favour of the respondent where it was held that as per Apex Court judgment in the case of Union of India v. Indian Aluminium Co. Ltd., the dross and skimming of Aluminium are neither goods nor marketable commodities and, hence, are not liable to Excise duty. - Decided against the Revenue
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2016 (8) TMI 344
Production capacity based duty - Quantum - Pan Masala - denial of pro-rata benefit of duty due to failure to pay duty in time - closure of factory for the part of month - Held that:- the issue is covered in favour of appellant in the earlier order of Tribunal in Shri Flavours Pvt. Ltd. vs. CCE Delhi-IV [2014 (4) TMI 417 - CESTAT NEW DELHI]. Therefore, by following the decision of Hon'ble Delhi High Court in the case of CCE Vs. Shakti Fragrances Pvt. Ltd. [2015 (10) TMI 1040 - DELHI HIGH COURT], the failure to make the payment of duty on fifth day of every month cannot result in depriving the assessee of the pro rata abatement of duty which he is in any way entitled to. Hence, the impugned order is set aside and the appellant is required to pay duty on pro-rata basis for 12 working days. - Decided in favour of assessee.
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2016 (8) TMI 343
Cenvat credit - Entitlement - Steel goods - Held that:- by relying on the finding of Hon'ble Madras High Court in the case of India Cements Ltd. Vs. Cestat [2015 (3) TMI 661 - MADRAS HIGH COURT] and Hon'ble Gujarat High Court in the case of Mundra Port & Special Economic Zone Ltd. Vs. CCE [2015 (5) TMI 663 - GUJARAT HIGH COURT], Shape & Section, angles, M.S. Plates/rounds, beams, rails etc. and also welding electrodes used in fabrication/construction of capital goods including structural support, etc. for the period Feb/ 2007 to June/2009 are entitled to Cenvat credit. Limitation - Demand - Invokation of extended period of limitation - Held that:- as their are existed contrary judgements of this Tribunal, extended period of limitation is not invokable. - Decided in favour of appellant with consequential relief
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CST, VAT & Sales Tax
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2016 (8) TMI 337
Revision – penalty rested on the statement of the driver that the goods were not loaded at the business premises of the revisionist but were loaded at another place in Saharanpur – SCN – revisionist produced all relevant documents and records – tribunal assumed that the transaction in question had not been duly recorded in the books of accounts at the time of consignment and that records were prepared by the revisionist only after the instant proceedings were drawn up. Held that: - The imposition of penalty upon the assessee cannot be made dependent upon the presumption or assumption of any authority. The authority concerned is obliged to arrive at a conclusion based upon the material on record that the bills had not been accounted for and there was an attempt to evade payment of tax. The first appellate authority had recorded that the goods had been duly accounted for in the books of accounts which were produced before him - the jurisdictional fact, existence of which was required for imposition of penalty was clearly absent – order of Tribunal unsustainable – revision allowed.
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2016 (8) TMI 336
Revision – penalty – intention to evade tax – seizure – the Form-31 filed had been taken by the assessee in the name of M/s. Chabra Brothers whereas the consignment itself was from one M/s. Aman Deep Trading Pvt Ltd., - Held that: - The circumstance of the Form-31 having been applied in the name of a different trader than the one from whom the purchases were ultimately effected would not and could not have dispelled or upset the conclusion arrived. Hence no intention to evade tax – revision allowed.
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2016 (8) TMI 335
Assessment order – verification of records – sale of stock - slump sale – Held that: - sale of the entire stock-in-trade as such could not be treated as sale of business in entirety. When the assessee continued to be in business and retained business in those units, the question of exclusion of turnover relating to stock in trade does not arise – writ petition allowed – matter remanded back – opportunity of being heard provided to petitioner.
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2016 (8) TMI 334
Writ petition – delay in filing appeal – pleading for extension of time limit for filing appeal - Some mishaps in the family, since two of the directors had passed away. The petitioner's business itself had come to a standstill and they stopped all activities – payment fully made by petitioner to the officials of the Enforcement Wing with a view to purchase peace and not to precipitate the matter further. Held that: - writ petition disposed off. Liberty to petitioner to file appeal. If appeal made within 30 days, from the date of receipt of a copy of this order, the Appellate Authority shall entertain the appeals without reference to the question of limitation. It is made clear that whatever the amounts recovered from the petitioner towards tax liability by way of cheques taken by the officials of the Enforcement Wing, shall be taken as the amounts paid by the petitioner without prejudice to their rights and contentions in the appeals and the petitioner is entitled to canvass all the points – decided in favor of petitioner.
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2016 (8) TMI 333
Order of assessment – levy of additional sales tax – split in the turnover during different periods - circulars in exercise of powers under Section 28-A of the Tamil Nadu General Sales Tax Act -– Held that: - if in the very same financial year, different rates are to be worked out by virtue of prescription of such different rates, due to statutory amendments, the only exercise to be carried out would be to ascertain the period for which the different rates of tax are to be worked out – assessment to be done fresh - writ petition allowed – matter remanded.
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2016 (8) TMI 332
Writ petition – maintainability – petitioner failed to pay the demand amount – Held that: - court does not propose to foreclose the petitioner's rights, as the petitioner has an effective alternative remedy under the provisions of the Act and the petitioner can file a revision under Section 45 of the Puducherry Value Added Tax Act, 2007 – writ petition dismissed.
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Wealth tax
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2016 (8) TMI 351
Urban land - ITAT held that "urban land" as defined in clause (b) of Explanation 1 to Sec.2(ea) of the Wealth Tax Act does not include any right or interest that a person may be having in the urban land otherwise than by way of actual ownership - Held that:- This Court is in complete agreement with the findings recorded by the Tribunal which is just and proper and therefore we accordingly answer the question raised in this appeal in favour of the assessee and against the Department . The assessee before us merely had a right in the property, which does not fall within the meaning of the term “assets” as defined in section 2(ea) of the Act.
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