Direct Tax Basket 2015-TIOL-172-HC-AHM-IT CIT Vs Shyamprakash Spining Mills Ltd Income Tax - Section 43B Keywords: sick industrial undertaking - electricity duty - deferment - loan - notification issued by state government Whether in case the State Government has issued the notification with a view to alleviate the adverse effect caused to industrial units under Deferment Scheme due to operation of Section 43B, disallowance can be made on such amount of duty deferred. - Revenues appeal dismissed : GUJARAT HIGH COURT 2015-TIOL-171-HC-AHM-IT CIT Vs M/s Shreenathji Corporation Income Tax - Sections 256(1), 269SS, 271D, 271E, 273B. Keywords: loans - business expediency - deposits - construction - ignorance of law. Whether when the assessee has proved with corroborative evidence that it has taken loan in violation of section 269SS as a result of business expediency, penalty u/s 271D can still be levied on him - Whether an assessee in order to defend himself against the contrary provisions, could take the excuse of ignorance of law. - Revenues appeal partly allowed : GUJARAT HIGH COURT 2015-TIOL-170-HC-AHM-IT ACIT Vs Chokshy Keshrimal Mohanlal And Company Income Tax - Sections 113, 158BC. Keywords: search - seizure - surcharge - block assessment. Whether accrual of any benefit to the assessee can be construed as a decisive factor for retrospective operation of a new proviso inserted to a beneficial piece of legislation. - Revenues appeal dismissed : GUJARAT HIGH COURT 2015-TIOL-169-HC-MUM-IT DIT Vs Society Of Congregation Of Franciscan Income Tax - Section 11(1)(a). Keywords: trust - depreciation - objects of trust - application of income - capital expenditure. Whether in case of trust, when full expenditure has been allowed in the year of the acquisition of an asset, would it means that the amount spent on acquiring these assets had been treated as application of income of the trust in the year in which the income was spent in acquiring these assets - Whether that would mean that in computing income from those assets in subsequent years, depreciation in respect of those assets cannot be taken into account. - Revenues appeal dismissed : BOMBAY HIGH COURT 2015-TIOL-168-HC-DEL-IT CIT Vs Modi Xerox India Ltd Income Tax - Sections 80HH, 80HHC, 80I. Keywords: sale of scrap - losses of industrial undertaking - service unit - manufacturing - gross income. Whether deduction in respect of income derived by each industrial undertaking can be claimed independently or on a consideration of the losses suffered by the entire service unit - Whether income of an industrial undertaking is to be calculated on a consideration of absorbed business losses in respect of each individual unit, thereafter on the profit derived by the unit, the deduction is to be allowed - Whether u/s 80-I(6) for the purposes of calculating deduction, the loss sustained in one of the units, cannot be taken into account because sub-section (6) contemplates that only the profits shall be taken into account as if it was the only source of income - Whether sale of scrap is to be included in the total turnover while computing deduction u/s 80HHC. - Revenues appeal dismissed : DELHI HIGH COURT 2015-TIOL-167-HC-DEL-IT CIT Vs Shri Chintoo Tomar Income Tax - Sections 2(14), 54, 147, 148, 260A. Keywords: reasons to believe - brought forward capital losses - capital gains. Whether when it is clear that during assessment, AO has assumed facts without even trying to look at the return of income and other papers on record, an assumption to reopen assessment finalised, is a mere suspicion without any foundation - Whether in case there is no rational connection between the reason recorded and the formation of belief that income had escaped assessment, the AO could proceed on the basis of the reasons recorded even if they did not show any link with the escapement of income and were also factually incorrect. - Revenues appeal dismissed : DELHI HIGH COURT 2015-TIOL-80-ITAT-DEL + Story Delhi & District Cricket Association Vs DIT Income tax – Sections 2(15),11, 12A, 12AA Keywords: trade - charitable purpose - general public utility - cancellation of registration granted u/s 12A - sponsorship activity - deficit Whether when it has been made apparent that amendment to section 12AA(3) by the Finance Act, 2010 w.e.f. 1st June, 2010 is prospective in nature, in case of any Trust registered u/s 12AA or u/s 12A, the CIT has power to cancel the registration granted u/s 12AA(3), before the said amendment date - Whether cancellation of registration granted u/s 12AA(1) can be made even in case of a genuine trust - Whether in absence of the twin conditions mandatorily required for invoking jurisdiction u/s 12AA(3), that the activities of the Trust are not genuine or the activities of Trust are not being carried out in accordance with the objects of the Trust, the DIT(E) has the authority to cancel registration granted u/s 12AA - Whether merely entering into an agreement with a third party to perform an activity in an organised manner, would alone is sufficient to make the activities of assessee as commercial activity - Whether in case even after the receipt from sponsorship and subsidy, there was deficit, which was met by the assessee, the adjustment resulting in subsidizing the cost of assessee, could be termed as business activity - Whether in case all the receipts of the assessee are intrinsically linked with its core activity as mentioned in the objects, the cancellation of registration granted u/s 12AA is justified. - Assessee’s appeal allowed : DELHI ITAT 2015-TIOL-79-ITAT-MUM DCIT Vs Hathway Investment Pvt Ltd Income Tax - Sections 14A & 143(3) Whether rule 8D is required to be compulsorily applied - Whether in the case of shares held as stock-in-trade, it is the same activity, i.e., the purchase and sale of shares, that results in two streams of income, being the share trading income (which is taxable) and dividend income (which is not taxable), so that there is no feasibility of recording expenditure separately, and the estimation of expenditure becomes inevitable. - Assessee’s appeal partly allowed : MUMBAI ITAT 2015-TIOL-78-ITAT-COCHIN The Chettiamparamba Service Co-Op Bank Ltd Vs ITO Income Tax - Sections 59(cciv) & 80P(4) Keywords - aggregate average advances - co-operative bank - eligible for deduction Whether the assessee society being a co-operative bank is not eligible to claim deduction u/s 80P(2)(a)(i) after the introduction of sub-section (4) to section 80P – Whether the benefit of deduction of 10% of the aggregate average advances is applicable to co-operative bank, provided their rural branches have advanced such amounts. - Assessee’s appeal dismissed : COCHIN ITAT Indirect Tax Basket SERVICE TAX SECTION 2015-TIOL-167-CESTAT-MUM M R Narkhede Memorial Turst Vs CST ST – Commercial Training/Coaching - appellant have field a copy of communication dt. 10.9.2014, issued by the Under Secretary, University Grants Commission, New Delhi to the Chairman & Trustee of the appellant, wherein the name of the concerned two deemed universities at serial No. 18 & 23 of the list, stating that a deemed university have been established – Tilak Maharashtra Vidyapeeth w.e.f. 28.4.1987 and Institute of Advanced Studies in Education w.e.f. 25.6.2002 - Thus the deemed university is in legal existence as communicated by UGC and accordingly the degrees/certificates awarded by them for the education through the appellant is recognized by law – prima facie case in favour of appellant – stay granted: CESTAT [para 5] - Stay granted : MUMBAI CESTAT 2015-TIOL-166-CESTAT-AHM + Story M/s Ajmnani Jaspal Singh Vs CCE & ST ST - Appellants submission that since penalty u/s 78 has been waived u/s 80 of FA, 1994, extended period is not invokable u/s 73 for confirmation of demand is not sustainable - both sections viz. s.73 & s.80 are to be independently examined - there is no evidence that appellant had any confusion that ST was not payable - Appellant preferred to sit quiet with his eyes closed - In the present case the entire demand is not time barred and appellant has not shown his bonafides by paying the service tax along with interest for the period within limitation - appeal dismissed: CESTAT [ para 4.1, 5.2] - Appeal rejected : AHMEDABAD CESTAT 2015-TIOL-165-CESTAT-MUM M/s Magarpata Township Development and Construction Co Ltd Vs CCE ST - Refund - Appellant is SEZ developer availing certain services and paid ST thereon - As the services were used for authorized operations in SEZ, therefore, refund claim was filed – Claim for refund was denied by citing Notfn 15/2009-ST and Notfn 9/2009-ST - Aggrieved, hence appeal – Held: intention of legislation was that if ST has been paid by unit which was not required to pay ST it does not mean appellant is not entitled for refund - Intention of legislature is that the person providing services is not required to pay ST - Therefore, Revenue has misinterpreted the notfn 15/2009 ibid to deny refund – As per Tata Consultancy Services Ltd 2012-TIOL-1034-CESTAT-MUM, appellants entitled for refund claim - It is not in dispute that appellant has filed refund within time limit prescribed under Section 11B of CEA, 1944 - As both issues have been decided in favour of appellant, impugned order set aside and appeal allowed: CESTAT [Para 2, 6, 7] - Appeal allowed : MUMBAI CESTAT CENTRAL EXCISE SECTION 2015-TIOL-164-CESTAT-MUM M/s Maharashtra Seamless Ltd Vs CCE CE – Rule 2(k) of CCR, 2004 - Appellant is entitled to take CENVAT Credit on welding electrodes which have been used for repairs and maintenance and plant and machinery – Appeals allowed with consequential relief: CESTAT [Para 4, 5] - Appeals allowed : MUMBAI CESTAT 2015-TIOL-162-CESTAT-MAD CCE Vs M/s Owens Brockway (I) Ltd Central Excise – Valuation - Respondents were engaged in the manufacture of Glass Bottles, clearing both printed and unprinted bottles; they received unprinted Glass bottles from their sister unit at Rishikesh and after printing Coke brand of the buyer, cleared the bottles from their premises on payment of central excise duty and availed cenvat credit – Revenue viewed valuation incorrect, proposed demand of duty along with interest and penalty on the Respondents on the ground of non-inclusion of insurance and freight charges and other essential ingredients in the assessable value – demands confirmed, modified by Commissioner (Appeals) and agitated by Revenue herein. - Appeals rejected : CHENNAI CESTAT 2015-TIOL-161-CESTAT-MAD M/s Surya Fine Chemicals Vs CCE Central Excise - Classification - Appellant, engaged in manufacture of food colour preparations both as a manufacturer as well as job worker held bonafide belief that the same was classifiable under Chapter 21 while Revenue was claiming classification under Chapter 32 of Central Excise Tariff Act, 1985 - Since appellant believed that the impugned item was not exigible, no registration was taken - However, after insertion of Chapter Note 7 to Chapter 21 to CETA, 1985 with effect from 16th March, 1995, department confirmed demands, agitated herein. - Appeal allowed : CHENNAI CESTAT CESTAT CUSTOMS SECTION 2015-TIOL-166-HC-DEL-CUS Manu Khosla Vs UoI NDPS - Petition against Detention order - The petitioner is evading the law - His bail was cancelled by this Court on 23.09.2014. In spite of the same, he has not surrendered - Merely because his Special Leave Petition is stated to be pending, he cannot evade arrest - Such conduct of the petitioner, disentitles him from approaching this Court in the exercise of its discretionary writ jurisdiction - The arrest warrants pertain to a criminal case under the NDPS Act - Even otherwise, the court is not inclined to exercise its discretionary jurisdiction in the present matter, at this stage - Petition dismissed. (para 13) - Petition dismissed : DELHI HIGH COURT 2015-TIOL-168-CESTAT-MUM + Story Air India Ltd Vs CC Cus – Conversion of Free Shipping Bills to Drawback Shipping bills – whether Single Member Bench can hear the matter – Issue referred to Larger Bench: CESTAT [para 5, 5.2, 6] - Matter referred to LB : MUMBAI CESTAT 2015-TIOL-163-CESTAT-MUM M/s Standard Galva Steel Pvt Ltd Vs CC Cus – Appellant filed refund claim in respect of 4% SAD amounting to Rs.36,85,608/- which was sanctioned by adjudicating authority – however, refund claim of Rs.14,06,203/- was ignored - Commissioner (A) rejected the appeal of appellant on an altogether different ground that amount of Rs. 14,06,203.88 was not paid in cash but deposited through DEPB script – appeal to CESTAT Held: Appellant entitled for refund of left over amount of Rs. 14,06,203.88 but same can be decided only after rectification of mistake in refund which can be done u/s 154 of Customs Act, 1962 - Matter limited to refund of amount of Rs.14,06,203.88 is remanded to adjudicating authority with liberty to appellant to make an application u/s 154: CESTAT [Para 5, 5.1] - Matter remanded : MUMBAI CESTAT
Posted on: Thu, 22 Jan 2015 08:18:26 +0000
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