Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
August 17, 2016
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
TMI SMS
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Income Declaration Scheme, (Second Amendment) Rules, 2016 - Notification
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Business loss - Nature of payment made towards one time settlement to clear the dues - Tribunal was utterly wrong in holding that the amount paid by the assessee to the bank in settlement of the debt owed by New Tobacco Company was a business loss of the appellant - HC
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Disallowance on account of labour charges, jelly purchase, sand purchase and gravel purchase and vouchers are self made could not be verified - disallowance at 50% to be made on self made vouchers - AT
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Interest on account of late deposit of TDS u/s. 201(1)/201(1A) - where the cheque had been deposited with the bank or before 7th day of next month in which TDS was deducted no interest will be chargeable - AT
Customs
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Refund - The contention of the assessee that the ADD was paid without assessment is totally untenable. It was paid very much in the process of assessment and clearance before allowing out-of-charge and clearance of the goods was allowed only after the payment of ADD - AT
DGFT
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Removal of mandatory warehousing requirements for EOUs, STPIs, EHTPs etc. - amendment in paras 6.01, 6.13, 6.19 and 6.28 of FTP 2015-2020 - Notification
SEZ
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Authorized employees of IT/ITeS units in SEZ allowed to Work from Home or place outside the SEZ unit - Government of India
Corporate Law
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Companies (Share Capital and Debentures) Fourth Amendment Rules, 2016 - Notification
Service Tax
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Levy of penalty - benefit of doubt - rent-a-cab service - the revenue was not clear about category of services under which assessee can be taxed and that is why initially revenue issued a show cause notice under the category of tour operator services - No penalty - AT
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Refund of service tax paid on GTA services - service tax was paid directly by the provider of services whereas it was the liability of the recipient under reverse charge - refund allowed - AT
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All the services of the appellant related to civil construction under Management, Maintenance or Repair and construction of govt. buildings, rendered to Varanasi Development authority are not liable to Service Tax. - AT
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Cenvat credit - Refund – Export of call centre services – remuneration given by the holding company – whether the holding company is service recipient for the purpose of Rule 3(2) of the Export of Service Rules, 2005 or the customers situated in and outside India - Held Yes - AT
Central Excise
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Whether the Appellants are eligible to pay duty by debitting CENVAT Credit account on the waste and scrap generated during the course of job work - Held Yes - AT
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Cenvat credit - Service Tax paid on Consultancy Service in connection with setting-up of Solar Power Project - the denial of credit, on the speculation that the electricity likely to be generated in such Solar Project could also be sold by the appellant, is not justified - AT
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Valuation - it is the value of the reels which has to be adopted for charging duty and the cost of transportation and insurance from factory gate to the cutting would not be includable in the assessable value. - AT
Case Laws:
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Income Tax
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2016 (8) TMI 568
Disallowance invoking section 40A(3)- AO assessed a sum being the amount appearing in credit side of the suspense account because the assessee had not given any cogent reason for explaining the same - Held that:- When the Assessing Officer is assessing the amount written back as income of the assessee, which pertained to the earlier year, the expenditure should be allowed as a deduction either as an expenditure of this year or as an adjustment against the amount written back. The CIT (A), therefore, was justified in allowing the claim of the assessee - Decided in favour of the assessee
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2016 (8) TMI 567
Levy penalty U/s. 271(1)(c) - whether exemption under Section 80 HHC which was claimed by the assessee was wrongly claimed as he has not done any export? - Held that:- Explanation-4 to Section 271 (1) (c) of the Act was never the basis for passing the impugned order of Assessing Officer. For the first time, this argument has been advanced before us and this contention was never raised before the lower authorities and there is no mention about this ground even in the memo of appeal. It is found by the Tribunal that the this is a case of concealment of income or filing of inaccurate particulars of income and, accordingly, the order of penalty passed under Section 271 (1) (c) by the authorities below is confirmed. In that view of the matter, in our opinion, Tribunal has not committed any error while passing the impugned order. Therefore, present appeal is dismissed and the question posed for our consideration is answered in favour of the assessee and against the revenue.
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2016 (8) TMI 566
Transfer pricing adjustment - would the exceeding of 20% of share holding by the directors and relatives of the petitioner-company in the aggregate in Writers Publishers Pvt. Ltd satisfy the requirement of clause (vi) of Section 40A(2)(b)? Held that:- Chapter X of the Act pertains to special provisions relating to avoidance of tax. Section 92 contained therein pertains to computation of income from international transaction having regard to arm's length price. Sub section (2) of Section 92 by virtue of Finance Act of 2012 w.e.f. 01.04.2013 includes the reference to the specified domestic transaction. Essentially by virtue of the said provision in case of specified domestic transaction also, given other requirements being satisfied; transactions would be computed having regard to arms length price. As per the sub section (2A) which was also added by virtue of the same amendment any allowance or interest or allocation of any cost or expense or any income in relation to the specified domestic transaction would be computed having regard to the arm's length price. The directors of the petitioner company, in the aggregate, held more than 20% of the shares in voting power in Writers Publishers Pvt. Ltd. The aggregate of expenditure incurred by the petitioner to such company exceeded ₹ 5 crores. Under the circumstances, we would allow the transfer pricing procedure to carry on further without interjecting at this intermediary stage. The legal contention of the petitioner that in the report of the Assessing Officer dated 08.03.2016, the basis of Section 40A(2)(b) was not taken and therefore, now cannot be raised versus the Revenue's contention, that if on admitted facts on the strength of correct statutory provisions the exercise of powers can be saved the order should not be quashed, are kept open. Likewise, the question whether Section 40A(2)(b) Clause (vi) would cover only the international holding of the director or the relative of the director of the assessee company or the aggregate of the holdings is also not concluded in this petition.
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2016 (8) TMI 565
Reopening of assessment - disallowing the interest component - Held that:- A close scrutiny of the reasons recorded would find a mention of the act of assessee not disallowing the interest component on such shares for the assessment year 2005-2006 which according to the Assessing Officer was done to avoid detection. If case of the Assessing Officer was that interest on borrowed funds would be a legitimate deduction, as long as the shares were held as stock, but upon the shares being converted into investment, such interest was not allowable deduction and in that sense income chargeable to tax had escaped assessment, he has not built on such case in his reasons. We say so because in the computation of income chargeable to tax escaping assessment, he has referred to a sum of ₹ 389.03 crores which, as noted earlier, is the total of the profit computed by him upon transfer of shares of M/s. Sun Pharmaceuticals Industries Ltd. and transfer of shares of Zigma Software Ltd. This computation of the profit was based on the original cost of acquisition in the market value on the date of transfer. This figure of income escaping assessment does not in any manner refer to the interest expenditure. In other words, a brief reference to the assessee claiming interest expenditure for the assessment year 2005-2006 was confined only to suggest that the same was done to avoid detection during the scrutiny assessment and the Assessing Officer did not built his case any further in the context of income chargeable to tax having escaped the assessment. - Decided in favour of assessee.
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2016 (8) TMI 564
Reopening of assessment - Power of settlement commission - Held that:- The Settlement Commission passed final orders as early as 19.06.1998 and thus, by applying the decision of the Hon'ble Supreme Court in Brij Lal [2010 (10) TMI 8 - SUPREME COURT ], the order of Settlement Commission has to be taken as final and conclusive and when there is no allegation of fraud or misrepresentation, the question of reopening or revising the order, that too in the manner done in the impugned orders cannot be sustained.
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2016 (8) TMI 563
Treatment to interest income - business income for computing deduction u/s. 80HHC or income from other sources? - Held that:- Considering the decision of this Court in the case of Commissioner of Income-Tax v. Gaskets and Radiators Distributors (2006 (9) TMI 97 - GUJARAT HIGH COURT ), wherein this Court has taken a view that the interest income from other sources other than FDR may not be included u/s. 80HHC of the Act. In that view of the matter, the contention of the appellant herein is required to be accepted. The amount of ₹ 59,42,786/= is required to be deducted and the calculation made by the assessee for deduction u/s. 80HHC of the Act will be available to the tune of ₹ 96,29,135/-. Therefore, the Appeal is allowed to the aforesaid extent.
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2016 (8) TMI 562
Loss on sale of actionable claim - whether was a business loss allowable as a deduction in the accounting period ending 31.12.1977? - Held that:- The submission of Assessee that the amount of ₹ 103 lakhs were advanced to M/s. Varun Shipping Company Ltd., was onaccount of business expediency so as to ensure that the State Bank of India does not adopt proceedings to enforce the guarantee given by the Respondent-Assessee for the loan granted to M/s. Varun Shipping Company Ltd. is a possible course of action adopted by a business. Further, we find that the investment of the Respondent-Assessee in M/s. Varun Shipping Company Ltd., is reflected in its contribution to the share capital of M/s. Varun Shipping Company Ltd.,. This contribution can be considered to be an investment as any increase in profitability of M/s. Varun Shipping Company Ltd., would result in dividends and likely appreciation of the share price resulting in the investor earning more than the investment made. The advance of ₹ 103 lakhs is not with the above objective/intention. In any case, it is very clear from the Assessment Order that the interest to the extent to which the Respondent-Assessee had waived, on the advance of ₹ 103 lakhs to M/s. Varun Shipping Company Ltd., was treated as business income and not as income from other sources. In the above view, the amount of ₹ 103 lakhs advanced to M/s. Varun Shipping Company Ltd., cannot be considered to be an investment in the present facts but appropriately a loan in the course of carrying on of business. Consequently, any loss on account of nonrecovery of ₹ 103 lakhs or any part thereof, would necessarily be a business loss in computing the profits and gains from business. Therefore, the first subpart of the question of law as framed is to be answered in the affirmative i.e. the loss on account of reduced recovery of the loan of ₹ 103 lakhs advanced to M/s. Varun Shipping Company Ltd., is to be considered as a business loss and not as a loss on investment.
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2016 (8) TMI 561
Transfer pricing adjustment - whether the transactions of import of pigments and fees for technical knowhow were at arm's length? - Held that:- Chapter X of the Act provides for computation of income arising from an International Transaction on the basis of the ALP in respect of transactions between AEs. Section 92(3) of the Act, which is part of Chapter X of the Act provides that the Transfer Pricing provisions will not apply where it results in reduction of income chargeable to tax. The result of accepting the Revenue's contention that the import of pigments is at a price lower than the ALP, would increase the import price of pigments, resulting in a reduction in income chargeable to tax. This is not permitted. Therefore, the reliance upon the email dated 27th August, 2002 submitted by the Assessee establishes a pricing policy with a view to finish local competition, does not in any manner have any impact on determining the ALP on import of pigment. The finding arrived at by the Tribunal on the basis of imposition of antidumping duty by the Customs is not challenged before us. The finding of the Tribunal that no adjustment is called for in the price paid by the Assessee for import of pigments for its AE's is a finding of fact which is not shown to be perverse and/or arbitrary. Technical knowhow/ Consultancy Fee -The finding of the Tribunal that the agreement for technical knowhow / consultancy was in respect of all the twelve services and Respondent-Assessee could avail of all or any one of these twelve areas listed out in the agreement as and when the need arose. We find the Agreement is similar to a retainer agreement. Consequently, the finding of the Assessing Officer attributing nil value to nine of the services listed in the agreement which were not availed of by the Respondent-Assessee in the present facts was not justified. Moreover, not adopting one of the mandatorily prescribed methods to determine the ALP in respect of fees of technical services payable by the Respondent-Assessee to its AE, makes the entire Transfer PricingAgreement unsustainable in law. Entitlement to deduction under Section 80HHC - non reduction of the amount credited to the Profit & Loss Account on revaluation of assets - Held that:- Explanation (baa) to Section 80HHC of the Act applies only to receipt by way of brokerage, commission, interest, rent charges or any other receipt of a similar nature included in the profits. The amount credited on account of revaluation of the assets though included in the business income does not fall in the nature of receipts spelled out in Explanation (baa) to Section 80HHC of the Act nor is it a receipt of similar nature. In the above view, the impugned order held that Explanation (baa) to Section 80HHC of the Act cannot be invoked in the case of the amount credited to the Profit & Loss Account on account of revaluation of the assets. Resultantly, holding that the Respondent-Assessee is entitled to the deduction under Section 80HHC of the Act without reduction of the amount credited to the Profit & Loss Account on revaluation of assets.
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2016 (8) TMI 560
Entitlement to claim under Section 80P - AO disallowed the claims of the assessee on the ground that the assessees had lent monies to the members who were undertaking non-agricultural/ non-farm activities and had received the interest on par with commercial banks - Held that:- Commissioner of Income Tax (Appeal) and the Income Tax Appellate Tribunal has clearly held that the assessees are not co-operative bank and that their activities in the nature of accepting deposits, advancing loans etc., carried on by the assessees are confined to its members only and that too in a particular geographical area. Therefore, the respondent Societies are eligible for deduction under Section 80P (2) (a) (i) of the Act. The contention of the appellants that the members of the assessee societies are not entitled to receive any dividend or having any voting right or no right to participate in the general administration or to attend any meeting etc., because they are admitted as associate members for availing loan only and was also charging a higher rate of interest at the rate of 14%, is not a ground to deny the exemption granted under Section 80P (2)(a) (i) of the Act. - Decided against the Revenue.
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2016 (8) TMI 559
Non-compete fees payment - whether an allowable business expenditure of revenue? - Held that:- In the present case, the “Non-compete fees” paid by the assessee company to the transferor company under an agreement where the transferor company shall not directly or indirectly manage, operate or have an interest in control or participate or compete against the assessee anywhere in the world for five years. Thus, the expenditure incurred primarily and essentially related to the non-competition of the transferor company against the assessee in the same business, which constituted the profit-earning apparatus of the assessee. Therefore, we are in complete agreement with the view taken by the Tribunal and it is held that the Tribunal was right in holding that the payment of ₹ 6 Crores made by the Assessee, as Non-compete fees, to VBC Industries Ltd. and other was an allowable business expenditure of revenue nature incurred by the assessee. The question posed for our consideration is answered in favour of the assessee
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2016 (8) TMI 558
Business loss - whether tribunal was not justified allowing the deduction paid to Andhra Bank by the assessee as a one-time settlement to clear the dues of M/s. New Tobacco Company, a group concern as the business expenses of the assessee although the same is not paid for the business of the assessee in deviation from the law and the statute? - Held that:- Tribunal was wrong in proceeding on the basis that the Reserve Bank of India had issued a caution notice. We asked Mr. Khaitan to produce the caution notice before us for consideration. Pursuant to our request, Mr. Khaitan has produced before us a news item published in the business page of The Telegraph dated March 31, 1995 from which it appears that the caution notice issued by the Reserve Bank of India had been withdrawn on or prior to March 30, 1995. The contents of a news item published in a newspaper are not admissible in evidence. What is admissible is that such a news was published. Whether it is correct or incorrect there is no evidence with regard thereto. Even assuming that such a news was published on March 31, 1995, it appears that the caution notice issued by the Reserve Bank of India had already been withdrawn. Therefore, the learned Tribunal was wrong in proceeding on the basis that it is due to the pressure exerted by the Reserve Bank of India that the assessee was made to pay the debt due by New Tobacco Company to the Andhra Bank. There was nothing before the learned Tribunal to show that the Andhra Bank would not have advanced any further money to Andhra Cements Ltd. except upon payment by the assessee the dues owed by New Tobacco Company. Even assuming for the sake of argument that there was any such situation then the payment of ₹ 1.35 crores would take the character of the cost of acquisition of the shares of Andhra Cements Ltd. acquired by the assessee shortly before such payment. It is an admitted fact that the Andhra Cement Ltd. was acquired by the assessee in the year 1994 while the Andhra Cements Ltd. was in a BIFR proceeding. The learned Tribunal was utterly wrong in holding that the amount paid by the assessee to the bank in settlement of the debt owed by New Tobacco Company was a business loss of the appellant. - Decided in favour of the Revenue.
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2016 (8) TMI 557
Treatment to cost of production of an abandoned film - revenue or capital expenditure - Held that:- As the cost of film under production was in the nature of stock-in-trade as per Rule 9A of the rules, that the said item was shown in current assets in the balance sheet and amortised in the year in which the film was released, that in case if the film was abandoned or scrapped the same was allowable as a revenue expenditure which included sundry creditors. - Decided in favour of assessee.
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2016 (8) TMI 556
Grant of depreciation - Held that:- We have observed that the assessee company has claimed depreciation on certain assets which were acquired by the assessee company being in the nature of UPS, routers, switches and cables, projector, pipes and racks etc. for which the assessee company is claiming depreciation @ 60%. However, the same was denied by the A.O. The ld. CIT(A) allowed depreciation @ 60% on routers. In our considered view, the assessee company acquired the fixed assets and if the same are forming an integral parts of the computer system which can be used along with a computer and when their functions can be integrated with a computer, depreciation is to be allowed @ 60%. However it should be segregated as indicated above and as such we set aside matter back to the file of the A.O. with a direction to review the entire list of fixed items and the items which are an integral parts of the computers which can be used along with a computer and when their functions can be integrated with a computer, the depreciation is to be allowed @ 60% and for the rest of the items in the list, depreciation @ 15% may be allowed. Additions made to the book profit computed u/s 115JB of the Act on account of provision for doubtful debts - Held that:- We have observed that Income Tax Act,1961 was amended by Finance Act, 2004 w.e.f 1-4-2001 by substitution of clause (i) of Explanation1 to Section 115JB of the Act whereby the amount or amounts set aside as provision for diminution in the value of any asset is to be added back to the profit of the assessee as per Profit and Loss Account to arrive at Book Profit u/s 115JB of the Act which is clearly applicable to Provision for doubtful debt of ₹ 15,29,058/- debited to Profit and Loss Account by the assessee and the same is ordered to be added back to Profit as per Profit and Loss Account to determine book profit as per amended provision of Section 115JB of the Act. This ground of appeal raised by the assessee company is therefore dismissed. Provisions for gratuity and provision for leave encashment based on actuarial valuation conducted by the acturial is an ascertained liability which shall not be added to Profit of the assessee as per Profit and Loss Account to compute Book profit u/s 115JB Employees contribution towards provident fund paid by the assessee company before the due date prescribed under the Income Tax Act,1961 for filing return of income u/s 139(1) of the Act be allowed of which the payment details are duly reflected in the assessment order Entitlement for deduction of FBT to arrive at the book profit for the purposes of computation of Book Profit u/s 115JB - Held that:- We find merit in the contention of the assessee company after going through the records before us and have observed that the assessee company is entitled for deduction of FBT to arrive at the book profit for the purposes of computation of Book Profit u/s 115JB of the Act. On the other hand the A.O. has reduced the losses by amount of FBT instead of increasing losses to arrive at Book Profit u/s 115JB which has led to double jeopardy to the assessee company. Thus, keeping in view of the afore-stated CBDT Circular, the A.O. is directed to re-compute the losses u/s 115JB of the Act whereby the FBT will be allowed to be added to the losses prior to tax as reflected in the audited Profit and loss account to increase the loss to arrive at the book profit u/s 115JB of the Act. We order accordingly.
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2016 (8) TMI 555
Sham transactions of the assessee with its AE’s - Held that:- Initially it was the TPO who analysed the transaction and gave a finding that the AEs have not rendered any services to the assessee and that the transactions are sham transactions. It is thereafter that the AO also went into the details of the services rendered by the AE and have come to the conclusions that the transactions are sham. Therefore, it is clear that the TPO has travelled beyond his jurisdiction as held by the Hon'ble Delhi High Court in the case of EKL Appliances (2012 (4) TMI 346 - DELHI HIGH COURT ). Further, applying the benefit test i.e. whether the payments made by the assessee are commensurate to the benefits acquired by it under the agreement, also fails, in view of the above decision. Therefore, in our opinion, the TPO as well as the AO are not correct in holding that the transactions between the assessee and its AEs are sham, particularly since the assessee was responsible for the designing Highway. The findings of the authorities below that the entire work has been executed by the sub contractor has already been found to be not correct. In view of the same, we hold that the assessee has received some services from its AEs. Whether the benefit received by the assessee is commensurate to the payment made by it, cannot be gone into in view of the above cited decisions and therefore, we set aside the orders of the AO and the CIT (A) on this issue. Coming to the computation of the ALP, we find that the Courts have repeatedly held that the TP adjustments can only be made by adopting the prescribed five methods. The TPO has not computed the ALP by holding the transactions as sham. Therefore, the matter needs reconsideration and recomputation of the ALP by the TPO. In view of the same we deem it fit and proper to set aside the orders of the AO and set aside the matter to the AO/TPO for re-determination of the ALP in accordance with the rules and the precedents on the issue.- Decided in favour of assessee for statistical purposes.
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2016 (8) TMI 554
Exemption u/s 11 - grant of registration under Section 12AA - assessee-Bar Council of Tamil Nadu - Held that:- As even though the preamble of order of the Director of Income Tax (Exemptions) dated 29.08.2011 says “Bar Council of Tamil Nadu and its unit Advocates' Welfare Fund”, the body of the order clearly says that the registration was granted only to the Fund and not to the Bar Council. The CBDT, however, after examining the application filed by the Bar Council of Tamil Nadu, found that the registration was granted with effect from 25.02.2011 on the basis of application dated 25.02.2011. Therefore, there is a confusion as to whether the Bar Council of Tamil Nadu and Advocates' Welfare Fund have filed any joint application for registration or the individual application filed by the respective statutory body was clubbed together by the Director of Income Tax (Exemptions) and passed a common order. These facts are not clear from the order of the lower authorities. Under the scheme of the Income-tax Act, each statutory body has to file independent application for registration under Section 12AA of the Act. Be that as it may, now registration was granted apparently to the Advocates' Welfare Fund by the order of the Director of Income Tax (Exemptions) dated 29.08.2011 and the CBDT has condoned the delay in filing the application for registration under Section 12AA of the Act for the assessment years 2003-04 to 2010-11 to the Bar Council of Tamil Nadu. In view of these factual confusion, this Tribunal is of the considered opinion that the matter needs to be reexamined by the Assessing Officer. Accordingly, the orders of the authorities below are set aside and the entire issue is remitted back to the file of the Assessing Officer. The Assessing Officer shall reexamine the matter afresh in the light of the registration granted by the Director of Income Tax (Exemptions) on 29.08.2011 and the order that may be passed by the Director of Income Tax (Exemptions) consequent to the order of CBDT dated 27.05.2016 and thereafter decide the same in accordance with law after giving a reasonable opportunity to the assessee.
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2016 (8) TMI 553
Data/ signal transmission - receipt of signal/data which was retransmitted by the assessee-company in India - India-U. K. DTAA - P.E. in India - assessee engaged in providing satellite capacity through space segment and related services to the Indian customers - Held that:- The assessee is maintaining an equipment in India through its associated enterprise for the purpose of testing quality of signal retransmitted in India. Therefore, this Tribunal is of the considered opinion that so long as the assessee is maintaining any equipment in India, it has to be construed that the assessee is rendering services in India. Now, the assessee claims that the equipment installed at Chandigarh and Chennai was dismantled from the year 2004. However, dismantling of machinery/ equipment installed at Chandigarh and Chennai is not brought on record by the authorities below. The assessee has to maintain the quality of signal which was retransmitted. If the quality of the signal/data is very poor then the recipient company may not accept the service as it was claimed before this Tribunal. Therefore, there is an obligation on the part of the assessee-company to maintain good quality of signal/data to be retransmitted so that Videsh Sanchar Nigam Ltd. or other companies which may redistribute the signal to their respective customers. Therefore, this Tribunal is of the considered opinion that it is obligation on the part of the assessee to maintain the quality of signal/data which was retransmitted. If the assessee-company dismantled the equipment/ machinery installed at Chandigarh and Chennai in the year 2004, it is not known how the assessee is testing the quality of signal retransmitted to India. The so-called earth station maintained by Videsh Sanchar Nigam Ltd. and other companies in India may be downlinking the signal/data from the satellite. The question arises for consideration is whether the earth station said to be maintained by Videsh Sanchar Nigam Ltd. and other companies could receive signal/data without any intervention by the assessee-company in India. This fact was not examined by both the authorities below. Further, how the signals were received in India without intervention of the assessee-company needs to be examined. This Tribunal is of the considered opinion that the technical experts from Videsh Sanchar Nigam Ltd. or very any other companies which entered into agreement with the assessee- company needs to be examined about the mode of receipt of signal/data which was retransmitted by the assessee-company in India. Since the Assessing Officer has not examined the technical experts, this Tribunal is of the considered opinion that to appreciate the real services rendered by the assessee, the matter needs to be reexamined by the Assessing Officer. Accordingly, the orders of the lower authorities are set aside and the entire issue is remitted back to the file of the Assessing Officer. The Assessing Officer shall reexamine the matter afresh after examining the technical experts from Videsh Sanchar Nigam Ltd. who is responsible for maintaining the earth station in India or any other companies which has entered into similar agreement with the assessee and bring on record the actual services rendered by the assessee consequent to the agreement said to be entered into telecasting companies/telecom operators and, thereafter, decide the issue in accordance with law after giving a reasonable opportunity to the assessee. - Decided in favour of assessee for statistical purposes.
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2016 (8) TMI 552
TDS u/s 195 - disallowance made against payment made to Consequence Australia Pty. Ltd., Australia, for purchase of database by treating it as payment made for obtaining technical services which comes within the scope of section 9 consequently attracting the provisions of section 40(a)(i) read with section 195 - Held that:- Double Taxation Agreement between India and Australia is not considered by the Revenue while arriving at their respective decisions. Therefore, in the interest of justice, we hereby remit the matter back to the file of the learned Assessing Officer for de novo consideration with a direction to pass appropriate order as per law and merit keeping in view our abovementioned observations. In the result, the appeal of the assessee is allowed for statistical purposes.
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2016 (8) TMI 551
Addition u/s 40A(3) - Held that:- Assessing Officer cannot restrict the Business of the assessee firm on application of the Rule 6DD, further provisions of Sec. 40A(3) of the Act empowers the ld. Assessing Officer to disallow deduction claimed as expenditure were payments are not by account payee cheque/draft. The ld. Assessing Officer should analysis the payments either by Crossed Cheque or Bank Draft and ascertain whether the payments are genuine considering business expediency, genuineness and bonafide peculiar transactions of the business. The assessee firm makes cash payments in the circumstances as per the intention of the vendors/supplier who transact on cash basis and no credit facility is available in the remote villages. So, considering the apparent facts and nature of business of the assessee being laying of roads, building bridges and culverts in the remote village and purchase of sand, jelly from the local vendors and lorry brokers who are illiterate and does not have permanent place of Business and also vendors and Hawkers deliver the sand, jelly at the working sites of assessee during odd hours in remote areas and we support our opinion with the decision of Anupam Tele Services vs. ITO (2014 (2) TMI 30 - GUJARAT HIGH COURT ) and we set aside the order of the Commissioner of Income Tax (Appeals) and delete the addition made by the ld. Assessing Officer on this ground. - Decided in favour of assessee Disallowance being expenses for tea, coffee, freight charges and diesel expenditure not supported by vouchers - Held that:- The fact that nature of expenditure being tea, coffee, freight charges and diesel expenditure, the assessee has claimed these expenditure incurred wholly and exclusively for the purpose of activities of the business and the findings of the ld. Assessing Officer they are not supported with vouchers and doubted the genuineness and disbelieved the transactions. The ld.CIT(A) has confirmed the findings of the ld. Assessing Officer. Considering the apparent facts and material, we are of the opinion that the consent cannot be a reasons for sustaining the addition in exceptional circumstances of the working conditions of the firm and the nature of expenditure incurred. Further their shall not be laxity on the part of the assessee firm in maintenance of vouchers for due compliance of Income Tax provisions. we found that it would be reasonable to restrict the disallowance to 50% due to external circumstances of works and we direct the ld. Assessing Officer to restrict the disallowance of said expenses to 50% only and the ground of the assessee is partly allowed. Disallowance on account of labour charges, jelly purchase, sand purchase and gravel purchase and vouchers are self made could not be verified - Held that:- The fact that labour charges, jelly purchase, sand purchase and gravel purchase incurred wholly and exclusively for the purpose. Since, the vouchers are self made the ld. Assessing Officer has doubted the transactions and made disallowance. The ld.CIT(A) has confirmed the findings of the ld. Assessing Officer. Considering the facts and nature of expenditure and the laxity on the part of the assessee firm on non maintenance of record and compliance of Income Tax provisions, we found it Reasonable to restrict the disallowance at 50% due to Business activities at remote areas as discussed. We direct the ld. Assessing Officer to restrict the disallowance to 50% only and the ground of the assessee is partly allowed.
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2016 (8) TMI 550
Interest on account of late deposit of TDS u/s. 201(1)/201(1A) - Held that:- In the instant case, assessee has deposited the TDS amount on or before 7th day of next month in each tax was deducted. In the similar facts and circumstances, various courts have decided the issue in favour of assessee in the case of CIT v. Nenmony Investments & Agencies Ltd. (1977 (11) TMI 45 - KERALA High Court ) to reach to the conclusion that the cases where the cheque had been deposited with the bank or before 7th day of next month in which TDS was deducted no interest will be chargeable. The AO accordingly directed. Hence, this ground of assessee is allowed.
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Customs
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2016 (8) TMI 576
Anti-dumping duty - Refund claim – bill of entry – assessment of ADD - Held that: - the Respondent filed 8 Bills of Entry, out of which, seven were assessed under second check procedure. In the second check procedure, the Bills of Entry are assessed on the basis of the importer’s declaration without examining the goods which are examined at the time of clearance/giving out of charge from the docks. In this case, when the goods were examined, it was found that they were liable to ADD following which the Dy. Commissioner wrote a letter dated 12.06.2015 informing that as per examination order it was directed by the Assessing Officer regarding the payment of ADD manually before giving out-of-charge for clearance of goods. Regarding the 8th Bill of Entry No.6880702, Dy. Commissioner categorically informed that this Bill of Entry was cleared through RMS, where it was mandatory for the importer or the customs broker to pay the ADD as per rule as it is a self-assessed document. The contention of the respondent that the ADD was paid without assessment is totally untenable. It was paid very much in the process of assessment and clearance before allowing out-of-charge and clearance of the goods was allowed only after the payment of ADD. Notification 70/2010-Cus, dated 25.06.2010 – set aside by CESTAT – no authority to levy ADD – Held that: - three Member Bench of CESTAT despite having set aside Notification No.70/2010-Cus, dated 25.06.2010, ordered (continued) levy and collection of ADD at the rates prescribed in the said Notification. As the said order was passed by a three Member Bench presided by the President, CESTAT, it should be respectfully followed. Appeal allowed – decided in favor of revenue.
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2016 (8) TMI 575
Restoration of CB licence – import of cigarettes – violation of provisions of CBLR, 2013 – time limit for completion of enquiry proceedings - Held that: - As per the CBLR, 2013, in the matter of proceedings against a CB the enquiry proceedings should be completed in overall period of 9 months. However in the present case almost 14 months have passed from the date of receipt of offence report and enquiry has not been concluded. There is no provision for extension of time line prescribed for completion of proceedings – licence cannot be suspended for unlimited period – appeal allowed – decided in favor of appellant.
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2016 (8) TMI 574
Condonation of delay – application for fixation of brand rate – applications filed beyond the period of three months but before the expiry of 12 months from the date of Let Export Order made in the shipping bills – Held that: - granting of drawback or industrial brand rate which is a beneficial legislation needs to be considered in a broader perspective rather than a narrow view as done by the lower authorities. The statute mandates that an application can be filed for condoning the delay beyond the period of three months but within 12 months from the date of Let Export Order needs to be read in the correct perspective in line with beneficial legislation and delay, if any, needs to be condoned. This is held in the case Rallis India Ltd. vs. CCE, Bhopal reported in 2006 (6) TMI 280-CESTAT, New Delhi – liberal approach adopted – appeal disposed off – matter remanded back – decided in favor of appellant.
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Corporate Laws
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2016 (8) TMI 571
Scheme of amalgamation is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be sanctioned and the same is hereby sanctioned.
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2016 (8) TMI 570
Scheme of amalgamation is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be sanctioned and the same is hereby sanctioned. The Scheme of Amalgamation shall be binding on the Transferor and the Transferee Companies, their respective Shareholders, Creditors and all concerned. Let formal order of sanction of the Scheme of Amalgamation be drawn in accordance with law and its certified copy be filed with the Registrar of Companies within 30 days from the date of receipt thereof. A notice of the order be published in ‘Financial Express’ (English) and ‘Jansatta’ (Vernacular), both Delhi/NCR Editions and in the Official Gazette of Government of Haryana. Any person interested shall be at liberty to apply to the Court for any direction(s) as per law.
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2016 (8) TMI 569
Scheme of amalgamation is in the interest of its shareholders and creditors as well as in the public interest and the same deserves to be sanctioned and the same is hereby sanctioned.
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Service Tax
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2016 (8) TMI 592
Levy of penalty - benefit of doubt – Classification - rent-a-cab service – tour operator service – Held that: - the revenue was not clear about category of services under which assessee can be taxed and that is why initially revenue issued a show cause notice under the category of tour operator services. Though there is observation of the Assistant Commissioner in the earlier order that the appellants services are properly classifiable under rent a cab services but by the time such observation was made by the adjudicating authority, the period under the present case had lapsed. The appellant was under the bonafide belief that there services may fall under different category or that may not be taxable at all as they were not admittedly covered under the tour operator services. Benefit of doubt extended to assesse – penalty set aside. Appeal allowed – decided in favor of appellant.
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2016 (8) TMI 591
Refund of service tax paid on GTA services - service tax was paid directly by the provider of services whereas it was the liability of the recipient under reverse charge – can the liability be shifted to others by means of a private contract/agreement - transport of crushed stone, dust and coarse sand - Rule 2 (1)(d)(v) of Service Tax Rules, 1994 – Held that: - Both sides agree that the service recipient is body corporate and paid freight. Once service recipient is a body corporate and paid freight, as per the aforesaid Rule 2(1)(d)(v) ibid, the person liable to pay service tax in relation to taxable service provided by the appellant is the service recipient. Thus, it is clear that the legal liability to pay service tax does not rest on the appellant. The agreement is of no relevance. Section 67 (2) of the Finance Act, 1994 - gross amount charged is inclusive of service tax the value of such service shall be such an amount as with additional of tax payable is equal to the gross amount charged – Held that: - Section 67(2) ibid is not relevant in the present case as it deals with the valuation of service which is not the issue in this case. Service tax not payable – case remanded back – appeal allowed – refund granted - principle of unjust enrichment to be satisfied.
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2016 (8) TMI 590
Classification - work contract service -demand of tax, interest and penalty - taxability - CBEC Circular No. 123/5/2010-TRU dated 24.05.2010 - government construction would not be taxable. However, if such constructions are for commercial purposes like local government bodies getting shops constructed for letting them out, such activity would be commercial and builders would be subjected to Service Tax - Held that: - The works contract services (at the cost of repetition) falling under Construction of Complexes or commercial construction are exempted as per CBEC Circular No. 80/10/2004 dated 17.09.2004 and CBEC Circular 123/5/2010-TRU dated 24.05.2010. All the services of the appellant related to civil construction under Management, Maintenance or Repair and construction of govt. buildings, rendered to Varanasi Development authority are not liable to Service Tax. This is also held in the case ECP HOUSING (INDIA) PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, NASHIK 2011 (9) TMI 122 - CESTAT, MUMBAI. Assessee not liable to pay service tax - stay application rejected - decided against revenue.
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2016 (8) TMI 589
Cenvat credit - Refund – wholly owned subsidiary – Export of call centre services – remuneration given by the holding company – whether the holding company is service recipient for the purpose of Rule 3(2) of the Export of Service Rules, 2005 or the customers situated in and outside India – Held that: - service tax is a "destination based consumption tax", the test to be applied for ascertaining the actual consumer of service is the person who pays for the service and not the person who benefited from the service. Holding company paid for the services and will be regarded as recipient of service. Export of services – Held that: - the person availing the service and paying for the service is the ultimate beneficiary of service and since the recipient of service is located outside India, provision of service by the Indian service provider should be construed as export for the purpose of Export of Service Rules, 2005. Refund of cenvat credit allowed – appeal allowed – decided in favor of appellant.
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Central Excise
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2016 (8) TMI 593
Cenvat credit - explosives and welding electrodes used by the assessee in their captive mines - Held that:- the issue is no more res integra and stands settled by the Hon’ble Supreme Court in the case of Vikram Cement [2006 (1) TMI 130 - SUPREME COURT OF INDIA] laying down that the utilization of inputs within the factory premises is necessary and the explosives, etc. used in the captive mines would also be entitled to the cenvat credit. - Decided in favour of assesse with consequential relief
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2016 (8) TMI 588
Whether the Appellants are eligible to pay duty by debitting CENVAT Credit account on the waste and scrap generated during the course of job work - Held that:- I do not find substance in the contention of the Revenue that "the Appellant cannot utilize the credit availed on the ‘inputs’ received and used in the manufacture of their own goods, for discharging the duty on waste and scrap generated during the course of job work i.e. goods belonging to other manufacturer", in much as there is no one to one co-relation between the ‘input’ and ‘output’ while discharging duty on the waste and scrap. Also, it is found that for the subsequent period, the learned Commissioner (Appeals) has accepted the payment as valid and allowed the appeal of the appellant. - Decided in favour of appellant with consequential relief
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2016 (8) TMI 587
Rectification of mistake and condonation of delay - 688 days - application filed after six months from the date of order of the Tribunal - Held that:- as per Section 35C of CEA, 1944, it is clear that the application seeking rectification of mistake should be filed within six months from the date of the order. Since the present application was filed after six months from the date of order, therefore, the same is not maintainable and accordingly rejected. Also, in absence of any provision for condonation of delay in filing the said rectification application, application seeking condonation of delay also devoid of merit and accordingly rejected. - Decided against the applicant
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2016 (8) TMI 586
Cenvat credit - import of raw materials - appellant's present name not mentioned in bills of entry - Held that:- it is clear that at the time of import, the bills were filed in the name of the company as existing at that time. The change of names have been effected, and there is no dispute on that count. I find the reason followed by the lower authorities is devoid of any merit. The goods have been imported by the appellant and have been used for intended purpose. The reason for denial is not legally sustainable. Regarding the 7th bill of entry also, I find the raw materials imported have been transferred in full to the appellant under due certification by the importer. The raw materials have been used by the appellant for manufacture on behalf of the supplier under loan licence basis. Therefore, I find no justification for denial of credit. - Decided in favour of appellant
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2016 (8) TMI 585
Cenvat credit - construction services for the period prior to 01.04.2011 - Held that:- on examining the definition of input services under Rule 2(l) of the Cenvat Credit Rules, 2004, it is found that the activity of construction is covered under setting up modernization, renovation and repairs of a factory premises. Therefore, the said definition covers the activity of construction of factory, hence, the respondent is entitled to avail cenvat credit on the said services. - Decided against the Revenue
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2016 (8) TMI 584
Cenvat credit - Service Tax paid on Consultancy Service in connection with setting-up of Solar Power Project - Held that:- it is clear that the said consultancy is in connection with the business of the appellant. The interpretation of the ld. Commissioner (Appeals) that the project relating to electricity generation cannot be considered as connected with the business of the appellant, which is manufacturing of cement, is narrow and unjustified. Further, the denial of credit, on the speculation that the electricity likely to be generated in such Solar Project could also be sold by the appellant, is not justified. - Decided in favour of appellant
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2016 (8) TMI 583
Cenvat credit - Import of goods through carrier - Credit took on Courier Bills of Entry which were mere photocopies - appellant ought to have filed the normal Bill of Entry and only such documents can be used for taking credit - Held that:- the appellant has sought several adjournments for furnishing the Original documents or certificates to prove the photocopies of Couriers Bills of Entry. They have not been able to furnish necessary evidence to establish that the credit was rightly availed by them. So on merits the appellants have no case and the recovery of credit calls for no interference. Period of limitation - Cenvat credit - allowability - import of goods through courier - took credit on the photocopies of courier bills of entry - as per Board Circular, No.56/95-Cus-dated 30-05-1995, the appellant ought to have filed the normal Bill of Entry - willful mis-statement and suppression with intent to evade payment of duty - Held that:- the allegation in the show cause notice is that the discrepancy came to light from Private records of the appellant. Apart from this bald statement, there is no proof as to what is the private record verified for details of other entries found in such record. The appellant has stoutly denied this contention and submitted that the fact of availing credit on the strength of postal Bills of Entry (couriers) was within the knowledge of the department through the monthly ER-I returns. Along with this statement complying Rule 7 of Cenvat Credit Rules, 2002 was also furnished. In this statement, the appellant had stated the documents as BE. This is countered by the revenue contending that the appellant ought to have stated courier Bills of Entry instead of simply mentioning as BE and there by has deliberately misled the department with intent to evade payment of duty. The fact of availing credit on Bills of Entry has been disclosed by appellants in their ER-I return along with Rule 7 statement. Though they have photocopies of the documents, due to lapse of time they are now unable to produce authenticated copies. The Cenvat Credit Rules do not prescribe any procedure for noting down as postal/.courier bills of entry. It is the Board of circular that prescribed that in case credit is availed on courier BE, the assessee has to file normal BE for availing credit. Therefore, it can be seen that the appellant had disclosed necessary details as required by Act and Rules, and the contention of the department that by showing BE in Rule 7 statement, the appellant committed deliberate suppression of facts or misled the department, is not tenable. The entire information was available to the department as per ER-I returns and the department could have sought clarification in case of doubt. Further, revenue does not dispute the fact of payment of duty upon the impugned documents. The objection raised is merely that the documents are photocopies. For suppression of facts there must be some positive act with intention to evade payment of duty, which is absent in the present case. Therefore, the show cause notice issued invoking the extended period of limitation is not sustainable, being time barred. - Decided in favour of appellant
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2016 (8) TMI 582
Entitlement of interest on refund - from 13/3/02 (being the date when 3 months ended from the date of application) up to 13/7/04 - refund claim was allowed and disbursed on 13/7/04 - Held that:- the impugned order is hit by the ‘doctrine of merger'. The Id. Commissioner (Appeals) who is the subordinate authority than the Tribunal cannot enter into the question which has been decided by the Tribunal and have attained finality. Thus I hold that the impugned order is hit by the 'doctrine of merger' and accordingly I set aside the same. Thus the appeal is allowed in favour of the appellant. I also hold that under the doctrine of merger, the Assistant Commissioner could not have rejected the interest on refund payable under section 11 BB in view of the clear interpretation given by the Hon'ble Supreme Court confirming the judgement of the Rajasthan High Court dated 10/2/04 and further in view of the interpretation given by the Joint Secretary, Department of Revenue, Government of India vide his order dated 7/6/2000. Therefore the concerned authority is directed to grant interest for the period ending on 3 (three) months from the date of application dated 11/12/2001 till the date of disbursement of refund, that is 13/6/2004. Section 35F of the Central Excise Act, 1944 - Whether an appeal can be filed against a simple communication letter - Held that:- it is found that the Commissioner appeals in error in holding that there is no appealable order. Any order or communication which has civil consequences on the assessee, is an appealable order. - Decided in favour of appellant
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2016 (8) TMI 581
Refund claim - rejected as time-barred under section 11 B clause 5(e) - appellant was allotted a contract for Highway project under the World Bank Loan Assistance, approved by Government of India - entitled for the benefit of Notification number 108/95 dated 28/8/95 wherein it is provided that where the goods are supplied to project that had been approved by Govt. of India and financed by an International organisation - appellant applied for eligibility certificate from the concerned authority on 12.3.2003 but the same was delayed (issued on 25.2.2004) - due to time bound nature of the work, the appellant purchased the CRMB (bitumen) on payment of Excise duty. Held that:- the right to claim refund crystallised only on receipt of the eligibility certificate which was issued to the appellant vide covering letter dated 25/2/2004. By following the ruling of the Hon'ble Delhi High Court in the case of Sony India Ltd [2014 (4) TMI 870 - DELHI HIGH COURT], I hold that the period of limitation of one year starts only from 26/2/2004 and not prior to that or the date of purchase earlier. - Decided in favour of appellant
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2016 (8) TMI 580
Availment of cenvat credit of service tax paid - outward transportation of goods - goods supplied on FOR destination basis - the freight element included in the assessable value - duty liability discharged - Held that:- by applying the judgment of Hon'ble Punjab & Haryana High Court in the case of Ambuja Cement Ltd. vs. Union of India [2009 (2) TMI 50 - PUNJAB & HARYANA HIGH COURT], the principles enunciated are that outward transportation service utilized by the manufacturer for transportation of finished goods from the place of removal up to the premises of the purchaser is covered within the definition of input service. - Decided in favour of appellant
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2016 (8) TMI 579
Valuation - paper reels sent from factory to cutting centres for conversion into sheets - sold from the depot - whether the freight and insurance charges from factory to cutting centres and handling charges at the cutting centres must be included on the assessable value - Held that:- the same issue has been decided by the Tribunal in the appellant's own case [2011 (4) TMI 800 - CESTAT, NEW DELHI] by relying on the decision of Hob'ble Apex Court in the case of Union of India vs. J.G. Glass Industries Ltd. [1997 (12) TMI 110 - SUPREME COURT OF INDIA], wherein it was held that value of the goods, when the duty on the same is chargeable at an ad-valorem rate, has to be taken as the value of the goods in the form in which the same had been cleared at the time of removal and since in this case, it is the reels which had been cleared from the factory on payment of duty, which subsequently after being cut into sheets were sold from the depot, it is the value of the reels which has to be adopted for charging duty and the cost of transportation and insurance from factory gate to the cutting would not be includable in the assessable value. - Decided in favour of appellant
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2016 (8) TMI 578
Valuation - Job-work for loan licenses - Demand - Differential duty on the deferential value between net price of the loan licensee and the declared net price - evasion of duty - declaration of net price in the prescribed attachments without production of invoice detailing the quantum of discount given to wholesalers/retailers - Held that:- there is no indication in the show cause notice to suggest that wholesaler/retailer was required to make payment to the job-worker. We also note that there is no reference to the manner in which the duty liability was compensated by the loan-licensee. The job-work charges are only one element of the total cost/price of cleared goods with the major portion being expended by the loan-licensee. Apparently, the price at which the wholesaler/retailer is to be supplied is determined by the loan-licensee who also assumes the responsibility for complying with the procedure laid down in the Central Excise Rules. It is difficult to conclude that the job-worker is in receipt of any amount, other than job-work charges paid by the loan licensee, from the wholesaler/retailer. Consequently, there is no basis for alleging that such trade discount has been retained by the respondent. There is no scope to attribute any motives or an opportunity to the respondent for retaining a portion of the consideration when there is no allegation that the consideration paid by the wholesaler/retailer passes through the respondent. The original authority has, correctly held that the show cause notice has not been able to establish any infringement of the valuation provision under Central Excise Act, 1944 and that no evidence has been led to show that discount claimed to have been deducted has been retained by respondents. - Decided against the Revenue
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2016 (8) TMI 577
Imposition of penalties - Rule 209A of Central Excise Rules, 1944 - clandestie removal of goods - various dummy/benami firms created - obtained hire purchase finance from various finance companies fraudulently - huge quantity of machinery, structurals etc. were shown accounted for in the books which were not available with M/s.Kedia Distilleries - Held that:- Appellant (Shri S.K.Batra) is one of the person alleged to be involved in scheming the financial fraud by acting as a proprietor of one of the dummy units which purported to have supplied machinery to the main party. Since, the financial fraud is admitted fact, other than this, the role of appellant in excise duty evasion is not explained in the impugned order. When companies are dummy and transactions are only book entries the penalty under excise rules cannot be justified. any. Similarly for second appellant (Kedia Castle Dellon Industries) also , the allegation of their involvement in any excise duty evasion has not been explained with evidence in the impugned order. As discussed earlier, we are dealing with mainly non-exiting machinery, created by book entries as part of financial fraud and some manufacture done by contractors. The role of appellant in the excise duty evasion has to be indicated and evidenced independently. Therefore, in the absence of coherent evidence to this effect the penalties imposed on appellants are not sustainable. - Decided in favour of appellant
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CST, VAT & Sales Tax
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2016 (8) TMI 573
Release of goods - KVAT - detention of the goods at the check post under Section 47(2) of the Act - petitioner being consignor continued to be the owner of goods - as per contract the goods were to be delivered to consignee within the stipulated time - bank guarantee for release of goods - Section 47(6) states adjudication proceedings has to proceed after notice to the owner of the goods. Such notice not given to petitioner causing undue hardship - principles of natural justice - ownership certificate produced by consignee - appeal in terms of Section 55 of the Act - Held that: - The right of the petitioner to file appeal before the appellate authority is hereby reserved. The petitioner shall file appeal within a period of two weeks from the date of receipt of a copy of this judgment. The payment of amount covered by the bank guarantee shall be kept in abeyance by the 2nd respondent for a further period of four weeks to enable the petitioner to get appropriate orders from the appellate authority. If no such order is produced before the Bank within the aforesaid period, it shall be open for the Bank to remit the amount as per the request made in Ext.P9 - appeal disposed off - decided in favor of appellant.
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2016 (8) TMI 572
Validity of writ petition - Article 226 of the Constitution of India - re-assessment order - Demand of tax, interest and penalty - Karnataka Value Added Tax - input tax credit - Held that: - writ petition against the impugned reassessment order cannot be directly filed before this court under Article 226 of the Constitution of India unless the settled parameters for invoking the writ jurisdiction against the appealable orders are satisfied by the assessee. The assessee can very well rely upon the circular of the Department as well as the Division Bench decision of this Court which are binding on the Department Authorities and claim the requisite relief before the Appellate Authority. That does not perse mean that against appealable orders of reassessment, directly a writ petition should be entertained in all cases by this Court under Article 226 of the Constitution of India - writ petition dismissed - alternative remedy available to petitioner.
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