Direct Tax Basket 2014-TIOL-1729-HC-MUM-IT Sureshkumar G Hundia Vs ACIT Income Tax - commission - import - export - bullion - confirmation letter - summon. Whether in case services of a third person were genuinely utilized by the assessee in order to procure a contract in its favour, the commission paid by the assessee to such an agent has to be allowed as revenue expenditure. - Assessees appeal dismissed BOMBAY HIGH COURT 2014-TIOL-1728-HC-KOL-IT The Moran Tea Co (I) Ltd Vs CIT Income Tax - Sections 115WA & 115-O - fringe benefit - sale of tea - deduction. Whether the amount of expenditure incurred by assessee in extending fringe benefits to its employees is to be construed as solely for the purpose of business - Whether deduction of such expenditure incurred can be denied in any case. - Assessees appeal allowed : CALCUTTA HIGH COURT 2014-TIOL-1727-HC-ALL-IT CIT Vs M/s Translam Ltd Income Tax - Sections 36(1)(iii), 43, 72(1) - income from other sources - business income - funds utilisation. Whether the temporary suspension of business do convert the business income into income from other sources - Whether change in the mode and manner of deriving income by exploiting commercial assets either by self or by leasing the same would change the character of income and such income would continue to be the income under the head Business income. - Revenues appeal dismissed : ALLAHABAD HIGH COURT 2014-TIOL-1725-HC-AP-IT K Rama Venkata Subbaiah Vs CIT Income Tax - Sections 60, 64(1)(iv) & 256(2) Keywords - HUF - gift of shareholding - partnership - stridhana property Whether there is any effect on the income of the firm, when a member of HUF transfers a part of its share of the same firm, to a member/part of the HUF - Whether there will be a change, when the donee is an outsider - Whether any member of a HUF can claim any definite share in the assets, till the partition takes place. - Assessees appeal dismissed : ANDHRA PRADESH HIGH COURT 2014-TIOL-1724-HC-AP-IT Rajkumar Vs Commissioner of Gift Tax Income Tax - Gift Tax - inheritance - sale deed - dissolution - partnership firm - deemed gift . Whether any act of transfer in one of the methods of sale, mortgage, gift, lease and exchange, can be said to have taken place in a partition within a family or between co-owners - Whether a gift, as defined under Section 2 (xii), which is fairly wider than the description of gift under Section 122 of the Transfer of Property Act, can be said to have taken place if only there is a valid and legal disposition - Whether the occasion for the member of a joint family or a co-owner or a partner to make a gift would arise only after his share is determined in the process of partition or dissolution - Whether in the case of dissolution of partnership, transfer of property takes place and the occasion to levy gift tax arise. - Assessees appeal allowed : ANDHRA PRADESH HIGH COURT Indirect Tax Basket SERVICE TAX SECTION 2014-TIOL-1906-CESTAT-DEL M/s JPS Associates Pvt Ltd Vs CST Service Tax - Stay / dispensation of pre deposit - management consultancy service – appellant are sub-consultants providing management consultancy service to various other consultants who in turn provide similar service to various organizations – Revenue viewed existence of tax liability at their end under Section 68 of the finance Act, 1994 read with CBEC circular No. 96/7/2007-ST dated 23.08.2007 – tax demand with interest and penalty adjudicated, upheld by Commissioner (Appeals) and agitated herein. Held: force in the appellants contention that the amount of consideration received in free foreign exchange would not merit taxability - Trade Notice No. 53-CE/97 dated 04.07.1997 at para 4.4 clearly creates an impression that sub-consultants are not required to pay service tax - at the material time, the said Trade Notice very much existed and was a valid and authorised guide to the trade - CBECs circular dated 23.08.2007 consolidated the various clarifications issued in the past and superceded them; however it does not mean that the past circulars were necessarily held to be invalid for the period during which they existed - untenable to allege suppression/wilful misstatements of fact to evade duty in the wake of the said Trace Notice; therefore, the demand beyond the normal period is prima facie unsustainable - of the total impugned demand, the demand for normal period works out to Rs.9.11 lakhs; pre deposit of the same ordered along with proportionate interest within four weeks. - Pre deposit ordered : DELHI CESTAT 2014-TIOL-1905-CESTAT-MUM + Story Affinity Express India Pvt Ltd Vs CCE ST - All judgments quoted by appellant were taken into consideration but it was not considered necessary to discuss each and every judgment for sake of brevity and only the judgments passed by the High Court were discussed and the order was based upon the same - no mistake apparent from record - ROM dismissed: CESTAT [para 4, 5] CENVAT - Refund - Export of service takes place at time of issuing invoice - date of receipt of payment is not relevant: CESTAT - ROM dismissed : MUMBAI CESTAT 2014-TIOL-1903-CESTAT-MUM S N Pawar Vs CCE ST – Plea that HAL is a defence PSU and hence services rendered to them are not taxable is not tenable as there is no provision found in law granting any such exemption or exclusion from the levy of ST in respect of Defence PSUs – HAL is a company incorporated under the Companies Act, 1956 and has their own balance sheet and earn profits and the undertaking is run on a commercial basis – therefore services rendered to HAL are certainly liable to Service Tax – prima facie confirmation of demand is sustainable in law: CESTAT [para 5] Limitation – appellant has been a service tax registrant since 2005 – in the statement recorded, appellant admitted to tax liability and undertook to made good the ST liability – thereafter, SCN was issued but the appellant did not bother to file any reply or appear before the adjudicating authority & even before appellate authority – conduct does not reflect well upon the appellant – since prima facie appellant has not made out any case, pre-deposit ordered of 50% of ST demand confirmed: CESTAT [para 5] - Pre-deposit ordered : MUMBAI CESTAT CENTRAL EXCISE SECTION 2014-TIOL-1733-HC-UKHAND-CX + Story CCE Vs M/s Bazpur Cooperative Sugar Factory Ltd CE - Rectified spirit attracting Nil rate of duty reported as wastage/storage loss - Credit availed of duty paid on Molasses is required to be reversed in view of rule 6(1) of CCR, 2004 - Revenue appeals allowed: High Court [para 12, 13, 14] - Appeals allowed : UTTARAKHAND HIGH COURT 2014-TIOL-1904-CESTAT-MUM M/s Harinagar Sugar Mills Ltd Vs CCE CENVAT - Appellant is manufacturer of biscuits and during the course of manufacture, floor sweepings emerged which are sold by the appellant as animal feed - lower authorities denying CENVAT credit on account of inputs contained in the waste - appeal to CESTAT. HELD : In appellants own case, Tribunal has held that Floor sweepings are not exigible to excise duty and it cannot be said that appellants are manufacturing floor sweepings - appellants are not required to reverse Credit attributable to generation of these floor sweepings or waste, as same has emerged during the course of manufacture of final products being biscuits - this order has been accepted by Revenue and no appeal has been filed - following same ratio, appeal allowed with consequential relief: CESTAT [Para 3, 4] - Appeal allowed : MUMBAI CESTAT CUSTOMS SECTION 2014-TIOL-1915-CESTAT-MUM + Story Larsen & Toubro Ltd Vs CC Cus - A decision pertaining to a GST law cannot be applied to a customs transaction - Customs duty is destination based consumption tax and the levy is imposed where the goods are consumed - since the pipe lines are used/consumed in India, they are liable to customs duty – Demand of Rs.12 crores upheld but penalty set aside as matter relates to interpretation of law: CESTAT - Appeal rejected : MUMBAI CESTAT 2014-TIOL-1907-CESTAT-MUM Shivkumar S Dubey Vs CC Cus - Penalty u/s 112(a) & 114AA of Customs Act, 1962 imposed on CHA for alleged contravention of section 111(d) and 111(m) of the Act – section 111(d) deals with import of prohibited/restricted goods – as the impugned goods are freely importable, the appellant cannot be said to have violated the provisions of s.111(d) of CA, 1962 – so also, while assessing goods, 52% of value has been loaded on the basis of NIDB data and, therefore, allegation of under-valuation is not sustainable – no violation of s.111(m) also – as allegations are not sustainable, penalty is not warranted – appeal allowed with consequential relief: CESTAT [para 7] - Appeal allowed : MUMBAI CESTAT
Posted on: Sat, 04 Oct 2014 09:55:00 +0000