TMI Tax Updates - e-Newsletter
August 14, 2012

Case Laws in this Newsletter:

Income Tax Customs Corporate Laws Service Tax Central Excise

Articles

1. Highlights some difficulties & clarity to comply the reverse charge mechanism

   By: Vijay Chitte

2. Reverse charge method of service tax- further expansion in piecemeal manner- a major and wholesome inclusion of all small and less organized service providers is required for simplification and better control etc.

   By: DEVKUMAR KOTHARI

3. Service provided by Directors and Security Service under partial Reverse Charge

   By: Bimal jain

News

1. Violation of Competition Act by Cement Companies.

2. CCI Probe Against Malpractices of Google.

3. No exemption provided to any Sector under the Competition Act, 2002.

4. Regulation of Multi-Level Marketing Companies.

5. Payment of Dividend by Companies.

6. Frauds by Chit Funds and MLM Companies.

7. Activities of ROC and SFIO.

8. Industrial Production.

9. FDI Inflow.

10. Patent to Food Products/Medicines.

11. FDI in Multi Brand Retail.

12. Setting Up of Industries.

13. Foreign Companies in Retail Sector.

14. Food Articles Under WPI .

15. Report of Tariff Commission.

16. Trade with China.

17. Production of Spices .

18. Performance of SEZs.

19. Levying of Additional Fee on Sale of Generic Drugs.

20. Export of Gems and Jewellery.

Notifications

Income Tax

1. 30/2012 - dated 9-8-2012 - IT

Double Taxation Agreement - Agreement for Exchange of Information with respect to Taxes with Guernsey.

Circulars / Instructions / Orders

VAT - Delhi

1. 11 - dated 6-8-2012

Regarding DST Period Demands.

Highlights / Catch Notes

Income Tax

• New Tax Agreement with Guernsey Boosts Transparency and Prevents Evasion through Information Exchange on Income Tax.

  Notifications : Double Taxation Agreement - Agreement for Exchange of Information with respect to Taxes with Guernsey. - Notification
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• High Court Quashes Order Due to Lack of Recorded Satisfaction in Cash Seizure u/s 132A of Income Tax Act.

  Case-Laws - HC : Search and seizure of cash – recording of satisfaction - condition precedent for the exercise of power under section 132A was lacking and the order made under it was liable to be quashed - HC
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• Section 74 Amended: Set-Off Rules for Unabsorbed Capital Losses Before AY 2003-04 Explained, Compliance Emphasized.

  Case-Laws - AT : Set off of unabsorbed capital loss - application of provisions of section 74 as amended by Finance Act, 2002 to unabsorbed capital losses relating to the AYs prior to the AY 2003-04 - AT
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• Electricity Distribution Company's Deduction Claim Denied: Clarifying "Substantial Renovation and Modernization" u/s 80-IA(4)(iv)(c) Explanation.

  Case-Laws - AT : Denial of claim of deduction u/s 80-IA(4)(iv)(c) - assessee is an electricity distribution company - the expression “undertakes substantial renovation and modernisation” cannot be read in isolation and has to be read along with Explanation to section 80-IA(4)(iv)(c) - AT
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• Clarification on Fringe Benefit Tax: Section 40(a)(ic) Deductions Not Applicable for Book Profits u/s 115JB.

  Case-Laws - AT : Disallowance of deduction on provisions of fringe benefit tax while computing book profits under section 115JB - prohibition u/s 40(a)(ic) does not apply to computation of book profit u/s 115JB - AT
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• Software Export Tax Deduction Dispute: Section 10A and Section 80IB(8A) Claims Denied for Non-Computer-Based Operations.

  Case-Laws - AT : Deduction u/s 10A and alternative claim u/s 80IB(8A) - export of computer software - assessee contended to be STP involved in software development - denial of deduction on ground that assessee’s operations do not have computer as primary and predominant hardware tool and scientific methods/tool are used - AT
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• Interest Paid by Indian Branch to Head Office Not Taxable in India Due to Self-Payment Nature.

  Case-Laws - AT : Interest paid to the head office of the assessee bank as well as its overseas branches by the Indian branch cannot be taxed in India being payment to self - AT
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• Non-compete Fees Classified as Taxable Business Income, Impacting Reporting and Tax Obligations Under Income Tax Laws.

  Case-Laws - AT : Non-Compete fees - taxability - chargeable to tax as ‘business income’ - AT
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• Tax Treatment of License Fees: Business Income or Other Sources? Key for Compliance and Deductions.

  Case-Laws - AT : Income from license fees - income under the head ‘Income from other sources’ OR 'business income' - AT
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• Transfer Pricing Adjustments: Ensuring Arm's Length Price in Income Tax for Associated and Non-Associated Enterprises.

  Case-Laws - AT : Transfer Pricing - adjustment to ALP - addition - consideration of transactions both with AEs and Non-AEs for the purpose of recommending adjustment - AT
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Customs

• Split ACs from Japan Eligible for Benefits Under Notification No. 29/2010-Cus Dated Feb 27, 2010.

  Case-Laws - AT : Import of indoor units of split air conditioners in pre-packed form from Japan – benefit of Notification no. 29/2010-Cus dated 27.02.2010 is available - AT
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Corporate Law

• Sale Agreement Post-Winding-Up Petition Deemed Unenforceable Under Companies Act Sections 531 and 531A.

  Case-Laws - HC : Winding up - Agreement to sell relied on by the appellant was of a date after the filing of the winding up petition and was thus unenforceable under Sections 531 & 531A of the Act - HC
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Service Tax

• Reversal of Cenvat Credit on Input Services: Notification No. 01/2006-ST Benefit Denied Despite Judicial Clarifications.

  Case-Laws - AT : Denial of benefit of Notification No. 01/2006-ST - If an amount taken as cenvat credit on the input services is reversed, various judicial pronouncements holds that such an amount is to be treated as credit not availed. - AT
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• Main Contractor's Service Tax Liability on Survey Contract Under Review for Compliance Verification.

  Case-Laws - AT : Survey and Map Making - liability - assessee contended that main contractor was discharging the service tax liability on the entire contract executed - matter remanded for vertification - AT
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Central Excise

• Party Claims Three-Year Service Tax Refund u/r 5 for Unutilized Export Credits Recorded in Single Entry After Delay.

  Case-Laws - AT : Refund claim under Rule 5 - all of a sudden took a credit for the past three years and claiming the same as accumulated unutilized on account of export of goods - service tax for three years were taken by making one entry that after a lapse of time - AT
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VAT

• Businesses Must Update VAT & Sales Tax Calculations for Daylight Saving Time Changes to Ensure Compliance & Accuracy

  Circulars : Regarding DST Period Demands. - Circular
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Case Laws:

• Income Tax

• 2012 (8) TMI 340
  Search and seizure of cash – Held that:- Deputy Director prepared a satisfaction note and placed it along with statements and other documents before Director of Income-tax (Investigation), who recorded satisfaction and issued warrant of authorisation under section 132A - On basis of warrant of authorisation, Deputy Director collected amount of Rs. 11 lakhs – since R had in his statement recorded under section 133A stated that he had given cash to assessee through JJ, then without due verification with JJ, no satisfaction could have been recorded that seized cash represented income which had not been, or would not have been, disclosed for purposes of Act by assessee - condition precedent for the exercise of power under section 132A was lacking and the order made under it was liable to be quashed; and there was no material on record to sustain the order made on the firm - warrant of authorisation under section 132A of the Act cannot be sustained.

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• 2012 (8) TMI 339
  Set off of unabsorbed capital loss - application of provisions of section 74 as amended by Finance Act, 2002 to unabsorbed capital losses relating to the AYs prior to the AY 2003-04 - STCG of Rs. 2.21 crores earned during the year set off against the long-term capital loss relating to AY 2001-02 - reference to Special Bench - Held that:- Section 74(1), as substituted w.e.f. 01.04.2003, uses the present tense and refers to the long-term capital loss of the current year. The said provisions thus are applicable to the long-term capital loss of AY 2003-04 onwards and not to the long-term capital loss relating to the period prior to AY 2003-04. The set-off of long-term capital loss relating to a period prior to AY 2003-04 is governed by s. 74(1) as it stood prior to the amendment made by the Finance Act, 2002. Therefore, assessee is entitled to claim set off of any brought forward long term capital loss relating to AY 2001-02 against short-term capital gain. The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. Unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right otherwise than as regards the matters of procedure. See Shah Sadiq and Sons (1987 (4) TMI 2 - SUPREME COURT), Govindas & others vs ITO (1975 (12) TMI 144 - SUPREME COURT) - Decided in favor of assessee Interest on Income Tax Refund - Held that:- It being a statutory obligation would be assessable under the head “ Income from other sources” Interest on excess refund - Section 234D - Held that:- Explanation 2 has been inserted in sec.234D by the Finance Act, 2012 with retrospective effect from 1.6.2003 clarifying that the provisions of sec.234D shall also apply to the assessment year commencing before the first day of June, 2003 if the proceedings in respect of such assessment year is completed after the said date. Since proceedings in respect of the said AY 03-04 has been completed on 30.11.2005, we are of the view that the assessee is liable to pay an interest u/s.234D

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• 2012 (8) TMI 338
  Levy penalty u/s.271(1)(c) - short term capital loss of dividend stripping not shown - Held that:- Assessee has offered the amount on account of short term capital loss of dividend stripping as per section 94(7) when a query was raised by the AO - Merely for committing the lapse by the assessee does not amount to furnishing inaccurate particulars of income as for not reducing the loss on account of dividend stripping from the total short term capital loss declared by the assessee due to mismatch in the computer calculation is an inadvertent mistake for which assessee has given an explanation and the said explanation cannot be rejected outright - it is not a fit case for levy of penalty u/s 271(1)(c) - in favour of assessee.

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• 2012 (8) TMI 337
  Denial of claim of deduction u/s 80-IA(4)(iv)(c) - assessee is an electricity distribution company - Held that:- For entitlement to claim deduction u/s.80-IA(4)(iv)(c)there should be substantial renovation and modernisation of existing network of transmission or distribution lines by the electricity distribution company & the Assessee had to achieve an increase in the book value of the fixed assets - plant & machinery viz., Lines, Cable Network by at least 50% of the book value of such plant & machinery as on 01.04.2004. The criteria for claim of deduction u/s 80 IA was not satisfied as the assessee seeks to rely on the expenditure incurred during the previous year which were in connection with renovation and modernization of cable and transmission line which were not complete and were in progress and therefore classified as CWIP. The fact that they were shown as CWIP in the books of account would only mean that renovation and modernization of the existing transmission or distribution lines had not been recognized as complete - reliance of assessee on the point "the same should be put to use" for allowance of deduction is nowhere mentioned - the expression “undertakes substantial renovation and modernisation” cannot be read in isolation and has to be read along with Explanation to section 80-IA(4)(iv)(c) - against assessee.

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• 2012 (8) TMI 336
  Challenge to revision proceedings initiated by Commissioner u/s. 263 - Income from sale of old rubber trees - CIT(A) took the view that on said income Rule 7A will apply - Held that:- On a careful perusal of Rule 7A the said rule talks about computation of income derived from sale of centrifuged latex or cenex or latex based crepes (such as pale latex crepe) or brown crepes etc & said rule does not talk about the taxability of income from sale of old rubber trees - CIT has placed incorrect interpretation on Rule 7A and it cannot be said that there is incorrect application of law on the part of the AO, thus the CIT was not correct in assuming jurisdiction over this issue by making incorrect interpretation of law. Indexation benefit allowed in the case of the sale proceeds of Grevillea trees - Held that:- CIT(A) took the view that the AO had converted the capital loss claimed in respect of Grevillea trees into long term capital gain of equivalent amount and was not justified in treating the above said amount as capital gain. The Revenue challenged the said decision of the CIT(A) before the ITAT who dismissed the ground raised by the Revenue. All these discussions show that the issue of the taxability of income on sale of Grevillea trees has been considered and decided by the CIT(A) as well as the Tribunal. Hence as per specific provisions in Clause (c) of Explanation to sec. 263(1), the said issue falls outside the scope of revisionary proceedings u/s. 263. Disallowance of proportionate interest relatable to investments made in subsidiary companies - Held that:- It is not a case that the AO has completely failed to examine the issue of applicability of provisions of sec. 14A to the case of the assessee as he had considered the application of Sec. 14A in respect of re-plantation expenses, which means that the AO has examined the applicability of sec. 14A to the case of the assessee - It is a well settled proposition of law that if the AO has taken one plausible view, with which the CIT does not agree revisionary proceedings u/s. 263 shall not lie in respect of the same. Disallowance of share transfer expenses - Held that:- As the said expenses have been incurred in connection with the maintenance of share holders register, considering the CBDT Instruction No. F. No. 10/25/63-IT(A.a) dated 18-06-1964 that the remuneration paid by the Company to its Registrar for performing duties in connection with the company's legal obligations to be discharged under the Company Law, should be regarded as revenue expenditure. Hence the CIT has entertained the view in respect of share transfer expenses without properly appreciating the facts relating to the same - no ground to initiate revision proceedings - decided in favour of assessee.

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• 2012 (8) TMI 335
  Disallowance of deduction u/s 10B - AO stated that the deduction under section 10B is to be allowed after set off of brought forward business losses and unabsorbed depreciation - Held that:- The loss incurred by the assessee under the head "Profits and gains of business or profession" has to be set off against the profits and gains, if any, of any business or profession carried on by such assessee. Therefore, as the profits and gains under section 10A is not be included in the income of the assessee at all, the question of setting off the loss of the assessee of any profits and gains of business against such profits and gains of the undertaking would not arise - As deduction under section 10A has to be excluded from the total income of the assessee the question of unabsorbed business loss being set off against such profit and gains of the undertaking would not arise - Since the provisions of section 10A and 10B are similar in nature the contention of assessee that carry forward business losses and depreciation cannot be set off to the profits of the undertaking while working the claim u/s 10B is uphold - in favour of assessee. Non inclusion/deducting the amount credited/debited as income/expenses relatable to unit eligible for tax holiday under section 10B for computing book profits u/s 115JB - Held that:- Under the scheme of provisions of section 115JB Minimum Alternate Tax (MAT) is levied with reference to the book profit disclosed in the profit and loss account prepared in accordance with the provisions of Parts II and III of Schedule VI of Companies Act, as opposed to ‘profits or gains of business or profession’ as computed as per the provisions of the Act - Explanation to section 115JB(2) provides for the purposes of this section, ‘book profit’ means the net profit as shown in the profit and loss account for the relevant previous year prepared under sub-section (2) as increased by the amount or amounts of expenditure relatable to any income to which section 10 or section 10A or section 10B or section 11 or section 12 apply - - deduction claimed by the assessee under section 80HHE has to be worked out on the basis of adjusted book profit under section 115JA and not on the basis of the profits computed under regular provisions of law applicable to computation of profits and gains of business - while working out deduction under section 80HHC are equally applicable to the provisions of section 10B while working out deduction under section 115JB, respectfully following the same uphold assessee’s contentions - in favour of assessee Disallowance of deduction on provisions of fringe benefit tax while computing book profits under section 115JB - Held that:- Considering Board Circular FBT is a liability qua employer,an expenditure laid out or expended wholly and exclusively for the purposes of the business or profession of the employer. However, sub-clause (ic) of clause (a) of section 40 of the Income-tax Act expressly prohibits the deduction of the amount of FBT paid, for the purposes of computing the income under the head “profits and gains of business or profession”. This prohibition does not apply to the computation of ‘book profit’ for the purposes of section 115JB - in favour of assessee.

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• 2012 (8) TMI 334
  Dis-allowance u/s 40(a)(ia) - non-deduction of tax at source u/s 194C on the trucks provided - assessee engaged in the business of transport arranging vehicles for transportation of goods and earning commission thereof - Held that:- It is observed that assessee has filed P/L A/c showing lorry freight receipts at Rs 79.71 lacs and lorry cartage paid at Rs 74.22 lacs showing net revenue of Rs 5.49 lacs. However, it claimed TDS on a larger amount and total freights as per the register aggregates to Rs.1.72 crores. Books of accounts stand rejected by AO. There is no reconciliation with reference to the total receipts as per the freight register and what was shown in the P/L A/c. There is also no finding either by AO or by the CIT (A) about the exact nature of assessee’s business. Further whether mere arrangement of trucks resulted in any contract is to be examined as AO has not invoked the provisions of section 194C nor disallowed amounts u/s 40(a)(ia). Since these aspects are not examined by AO in its correct perspective, we set aside the assessment to the file of AO to examine the above issues and complete the assessment accordingly

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• 2012 (8) TMI 333
  Dis-allowance u/s 14A - interest expenditure and administrative expenses - Held that:- It is observed from balance sheet that share holders’ fund aggregates to more than Rs.73 crores and the in investment in shares were around 57.65 crores. Thus, the assessee had own funds which were available for making the investment in the shares. Therefore, dis-allowance on account of interest expenditure u/s 14A is not sustainable. However, on the disallowance on account of administrative expenses u/s 14A, Tribunal has held that the disallowance should be restricted upto 5% of the dividend earning - Decided partly in favor of assessee. Employees’ contribution to PF and ESIC - dis-allowance - delayed payment - Held that:- If the employee’s share of contribution is paid before the due date of filing of the return u/s 139(1), then no dis-allowance can be made - Decided in favor of assessee.

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• 2012 (8) TMI 332
  Validity of reassessment order passed u/s 147 of the order framed u/s 143(3), when the same was subject matter of rectification u/s 154 - assessment reopened on ground that write off of loan of Rs 1.35 crores is the capital loss and should not have been allowed as bad debts - Held that:- It is found that Notice u/s. 154 was issued to rectify the mistake apparent from record of allowance of the claim of bad debt of Rs. 1.35 crore. Also, reasons given for the reopening of the assessment are on principle identical with the reasons given for the reopening of the assessment which shows that AO himself was not certain as to under which section he should proceed while framing the assessment u/s. 147. Further, no tangible material has been brought on record, the AO has simply disallowed the claim of write off on the facts and circumstances which were available before him while framing the original assessment. This approach clearly show that the AO has merely changed his opinion in relation to the allowability of the said write off. Moreover, it cannot be said that assessment proceedings were completed as the order passed u/s. 154 is also an order which can be subject to appeal and revision and as the proceedings are not been completed on record, it cannot be said that any income has escaped assessment. Hence, assessment order passed u/s. 147 is bad in law and is accordingly cancelled - Decided in favor of assessee.

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• 2012 (8) TMI 331
  Deduction u/s 10A and alternative claim u/s 80IB(8A) - export of computer software - assessee contended to be STP involved in software development - denial of deduction on ground that assessee’s operations do not have computer as primary and predominant hardware tool and scientific methods/tool are used - end products could not be treated as as service similar to export of customized electronic data - Held that:- Neither AO nor the DRP have taken cognizance of the findings of the Tribunals given in ITO Vs Accurum India (P) Ltd (2009 (11) TMI 550 - ITAT MADRAS-A ), M.L.Outsourcing Services Pvt. Ltd v. ITO (2011 (5) TMI 594 - ITAT, DELHI ), while deciding the issue of the present assessee, though according to the assessee, the issue in question is squarely covered by the above orders of the Tribunal. Also, assessee was not given proper opportunities to present his case before the Assessing Officer and the DRP and hence, the matter requires re-examination by the Assessing Officer. Therefore, in the interests of principles of natural justice and equity, the issue should be remitted back to the file of the AO for fresh consideration - Assessee’s appeal is treated as allowed for statistical purposes.

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• 2012 (8) TMI 330
  Transfer pricing - adjustment - CIT(A) deleted addition on ground that difference between the ALP so worked out and the sales price shown by the assessee was less than the safe harbor limit of 5% - revenue contesting the same and inclusion of other cases - Held that:- CIT(A) was fully justified in excluding the said three cases suggested by revenue since these were not exactly comparable with the case of the assessee and for the purpose of comparative study and deleting the addition made by the A.O. on account of TP adjustment after having found that the difference between the ALP worked out by excluding the said three cases from comparables and the sales price charged by the assessee to its AE was within the safe harbor limit of 5% - Decided against assessee. Interest on Income Tax refund - Business income vs Income from other sources - Held that:- It is observed that there is a contradiction in the findings recorded by the A.O. conceding it to be interest on income-tax refund whereas and CIT (A) conceded it to be interest on bank deposits, hence matter restored to file of the A.O. to ascertain exact nature of interest income received.

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• 2012 (8) TMI 329
  Interest paid to the Head office of the assessee bank as well as its overseas branches by the Indian branch - dis-allowance - assessee being commercial bank having its Head Office in France - Held that:- Issue stands squarely covered by the decision rendered in case of Sumitomo Banking Corp. Mumbai (2012 (4) TMI 80 - ITAT MUMBAI ) wherein it was held that interest paid to the head office of the assessee bank as well as its overseas branches by the Indian branch cannot be taxed in India being payment to self which does not give rise to income that is taxable in India as per the domestic law or even as per the relevant ‘tax treaty’ - Decided in favor of assessee. Dis-allowance u/s 14A of expenditure incurred in earning exempt income - Held that:- Since dividend income accrued from the investment out of its own funds, hence dis-allowance has been rightly deleted - Decided in favor of assessee. Guarantee commission offered to tax on accrual basis - addition - method of accounting - Held that:- Income from deferred guarantee commission did not accrue or arise in the year in which guarantee agreements were entered. It was held in case of CIT vs. Bank of Tokyo that such income should be spread over the period to which the guarantee commission related and should be assessed proportionately. Therefore, system of accounting regularly followed by the assessee should not be disturbed and accept the income as declared by the assessee following the same method - Decided in favor of assessee.

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• 2012 (8) TMI 328
  Non-Compete fees - taxability - assessee along with some other entities being promoters of a D Ltd, holding 52.60% shares of the said company transferred its shares and in addition to sale consideration received amount as ‘non-compete fees’ - revenue considered the same to be business income as against assessee contention of it being part of capital gain - AY 06-07 - Held that:- It is observed that assessees companies in the present cases were the ‘promoters’ and ‘shareholders’ of M/s. D and were having controlling interest in said company hence consideration paid would fall under the category of "Consideration paid to persons associated with the transferor to ensure that they also do not indulge in competing business" consequently payment for “not carrying out any activity in relation to any business” as covered by the provisions of sec.28(va)(a) and since the said provisions were applicable w.e.f. 01.04.2003, the same will be chargeable to tax as ‘business income’ as held by the AO and not as ‘capital gains’. reliance placed on case of Dr B.V. Raju (2012 (2) TMI 217 - ITAT HYDERABAD )- Decided against Assessee Sale of shares of other companies - dis-allowance of claim of long term capital loss - assessee contended that said shares were transferred as a part of the family settlement and could not be regarded as ‘transfer’ and invoking the provisions of section 47(iv), and treating the loss as a notional loss - Held that:- We restore the matter to the file of the A.O. for deciding this issue afresh on merits after examining the stand of the assessee in the light of relevant documentary evidence. Dis-allowance u/s 14A - Rule 8D - Held that:- As held in Godrej & Boyce Mfg. Co. Ltd. v. DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT] that disallowance u/s.14A for the years prior to AY 2008-09 has to be made by adopting some reasonable method, we restore the matter to the file of the A.O. for recomputation.

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• 2012 (8) TMI 327
  Income from license fees - income under the head 'Income from other sources' OR 'business income' - Held that:- As premises was taken on license by the assessee along with other licensor in the property, sub-licensed to M/s. Mid-day Publications Pvt. Ltd., came up for adjudication before the Tribunal assessment year 2005-06 where it was directed that the license fees should be taxed for the full year at Rs.18.97 lakhs and not for the period of three months held to be considered as business income - In the absence of any distinguishing features in the facts of the present assessee and the other licensor in the same property, respectfully following the precedent direction to tax the license fees for the entire year at Rs.18.97 lakhs as business income. Assessment of income as ‘Income from house property’ - Held that:- As the assessee had filed a copy of the Occupation Certificate received from Municipal Corporation & contended that the he was allowed possession of the premises much after the close of the financial year. Since this Certificate from Municipal Corporation came into existence after the passing of the assessment order and it will be just and fair if the impugned order on this issue is set aside and the matter is restored to the file of AO.

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• 2012 (8) TMI 326
  Transfer Pricing - adjustment to ALP - addition - consideration of transactions both with AEs and Non-AEs for the purpose of recommending adjustment - assessee engaged in the development and sale of computer software objected to the comparables chosen - Held that:- It is observed that assessee entered into international transactions with its AEs and also non-AEs and transfer pricing adjustment can be made only with reference to the international transactions with the AEs and not non-AEs. It is quite natural also because there can be no scope for arranging the transactions with non-AEs so as to reduce the due tax in India. On Revenue contention of restoring the matter to the file of TPO for a fresh determination of PLI on ground of non-availability of data it is held that facts indicate that the allocation of total revenues and total cost between AEs and non-AEs, was very much available before the TPO as well as DRP and none of these authorities have adversely commented on such allocation. It, therefore, implies that they accepted these figures as correct. Further, TPO finally chose 33 uncontrolled comparable cases on the basis of their revenues from IT/ITES and the companies in fact are those which appear to be exclusively engaged in rendering IT/ITES. It is manifest that the service fee charged by the assessee from international transactions with its AEs is more than the ALP determined by applying the PLI as found out by the TPO and hence no addition/adjustment is called for. We, therefore, order for the deletion of addition - Decided in favor of assessee

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• 2012 (8) TMI 325
  Bad Debts - dis-allowance on ground that assessee has not filed the necessary details - assessee contended that AO never asked any further details and it is not necessary to establish that the debt has become bad/ irrevocable - Held that:- Assessee has satisfied the conditions stipulated in section 36(2)(i) since these are business debts which could not be recovered and written off. Further, Supreme Court in the case of TRF Ltd vs. CIT (2010 (2) TMI 211 - SUPREME COURT) has held that it is not necessary to establish that the debt had in fact had become irrevocable after the provisions were amended w.e.f. 1.4.1989. bad debts stand allowed. Rebate u/s 88E - stock broking - assessee out of the gross income considered 5% of the expenditure whereas AO on assumption that assessee has not furnished any details of expenditure attributable to the above transactions and estimated the income at 25% of the gross expenditure - Held that:- As seen from the detailed schedules of the balance sheet, the stock in hand has gone up from Nil in earlier year upto Rs.1,46,27,156/-. It indicates that the borrowed funds were used for its business in trading transactions. If an analysis of the borrowed funds and its use was considered interest payment alone of Rs.22,80,089/- is attributable to the trading activity. Therefore, in our view AO is very conservative in attributing only 25% of the expenditure to the share trading activity. We uphold the action of AO Dis-allowance u/s 14A - Held that:- Even though on legal principles the matter is in favour of assessee, since assessee has not furnished any details of expenditure before AO and the working furnished was without prejudice to its claim. However in the interest of justice, matter requires re-examination by AO keeping in view of the principles laid down by the above cases and also to see there is any expenditure incurred in relation to the exempt income - Decided partly in favor of assessee.

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• Customs

• 2012 (8) TMI 324
  Plea for waiver of pre-deposit of penalties - penalty imposed of Rs.13 lakhs u/s 114 and 114AA of Customs Act, 1962 for alleged impersonation by appellant and exporting over-valued goods - assessee contended serious financial hardship and inability to even deposit 25% of the amounts involved - Held that:- Since issue is not free from doubt and considering the fact that the first appellate authority has himself expressed observation and doubt as regards maintainability of penalty under both the Sections of the Customs Act, 1962, we find that the appellant should be put to condition of depositing of Rs.2 lakhs for hearing his appeal by first appellate authority.

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• 2012 (8) TMI 323
  Import of indoor units of split air conditioners in pre-packed form from Japan – denial of benefit of exemption from Special Additional duty of Customs under notification no. 29/2010-Cus – Held that:- Notification no. 29/2010 grants exemption to a pre-packaged goods intended for retail sale in relation to which there is a statutory requirement of declaring on the package thereof the retail sale price of such article - indoor units imported by the appellant satisfies those requirements - benefit of Notification no. 29/2010-Cus dated 27.02.2010 is available to the appellant

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• Corporate Laws

• 2012 (8) TMI 322
  Winding up - appellant claims to have entered into an agreement with the Company in liquidation for purchase of land – Held that:- Agreement to sell relied on by the appellant was of a date after the filing of the winding up petition and was thus unenforceable under Sections 531 & 531A of the Act - the ignorance, even if any of the appellant, of the pendency of the winding up petition was of no avail and would not validate the transaction in question - appellant, in the absence of any valid agreement can neither seek a direction to the Official Liquidator nor will any purpose be served in granting permission to the appellant to sue the Company in liquidation – appeal dismissed

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• Service Tax

• 2012 (8) TMI 344
  Denial of benefit of Notification No. 01/2006-ST as amended, for the reason that the appellant has availed the cenvat credit while providing the Commercial or Industrial Construction services - plea for waiver of pre-deposit - assessee contended reversal of cenvat credit taken on input services - Held that:- If an amount taken as cenvat credit on the input services is reversed, various judicial pronouncements holds that such an amount is to be treated as credit not availed. Since this plea was not taken before the lower authorities, it is better left to the lower authorities to consider this plea in the factual matrix and come to a conclusion. Matter remitted back.

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• 2012 (8) TMI 343
  Plea for condonation of delay - reason provided for non filing the appeal in time being resignation of director looking after legal matters in August 2011 and non-information of order by him to management - in affidavit date of receipt of order mentioned as 04.05.12 whereas in ST-5 it is mentioned as 08.08.11 - Held that:- We find that the appellant has been callous in exercising his right of appeal before us and has not given sufficient cause for seeking the condonation of delay. There is no bonafide reason for not filing the appeal in time. Accordingly, we are convinced that the appellant has not made out a case for the condonation of delay. Appeal dismissed.

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• 2012 (8) TMI 342
  Plea for waiver of penalty imposed u/s 78 - assessee engaged in services of erection, commissioning and Installation contended by Revenue to be falling under work contract category w.e.f. 1.6.2007 - assessee submitted that provisions of section 80 may be invoked since there was confusion in the industry and two authorities of the department itself has given two different conclusions - Held that:- While confirming the demand of duty as not contested, penalties imposed under Section 78 are set aside as there was confusion in the field, and non-payment of Service Tax was not on account of any mala fide - Decided in favor of assessee.

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• 2012 (8) TMI 341
  Survey and Map Making - liability - assessee contended that main contractor was discharging the service tax liability on the entire contract executed by them and the appellant is only executing a part of the contract which have been awarded to them hence not liable to tax - Held that:- On perusal of the certificates issued by original contractor, we find that the original contractor had given ref. no. of the contract and also their service tax registration no. which could have been verified by the lower authority inter departmentally. In our considered view this should have been done by the adjudicating authority before adjudicating the issue. Appeal is allowed by way of remand to the adjudicating authority

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• Central Excise

• 2012 (8) TMI 321
  Demand imposed on ground that assessee has not reversed proportionate cenvat credit attributable to exempted goods cleared whereas assessee contended reversal of proportionate cenvat credit attributable to the exempted goods cleared - period involved 01.01.2005 to 31.10.2005 - Notification No.6/2002-C.E. - Held that:- In view of the retrospective amendments in the provisions of Rule 6, amount already reversed by the appellant as proportionate input cenvat credit attributable to the exempted goods cleared from the factory premises, should be enough compliance of the law. Order set aside - Decided in favor of assessee

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• 2012 (8) TMI 320
  Waiver of pre-deposit - refund claim under Rule 5 of the Cenvat Credit Rules - accumulated Cenvat Credit of duty paid on input used in or in relation to the manufacture of exported goods on the ground that the applicants were unable to utilize the same – Held that:- During the period 2004, 2005 and 2006, the applicant does not even mentioned the said amount of Cenvat credit as receivable in the books of accounts and all of a sudden took a credit for the past three years and claiming the same as accumulated unutilized on account of export of goods - service tax for three years were taken by making one entry that after a lapse of time - applicant failed to make out a case for total waiver of duty - applicants are directed to deposit 50% of the amount of demand

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• 2012 (8) TMI 319
  Input credit of excise duty on M.S, Angles and M.S. Channel, beams, plates etc. – denial on the ground that such items are not used in the manufacture of M.S. Ingots - Show Cause Notice for disallowing the credit taken in the year 2004 was issued on 8th August, 2008 - demand is time-barred

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• 2012 (8) TMI 318
  Cenvat credit on house keeping, rent-a-cab and courier services – Held that:- there was nexus between input services and final products - no reason to deny the credit of service tax paid on the three input services

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