CASE LAWS 2014-TIOL-537-ITAT-LKW M/s Hindustan Ferro & Industries Ltd Vs ITO Income Tax - Sections 41(1), 43B & 143(3). Keywords - ex-parte assessment order - established expenditure. Whether expenditure can be disallowed merely because which could not be verified by the AO, due to non-appearance of the assessee during the assessment proceedings - Whether the ex-parte assessment order by the CIT(A) was bad in law. - Assessees appeal allowed : LUCKNOW ITAT 2014-TIOL-536-ITAT-MUM DCIT Vs Tivoli Investment And Trading Co Pvt Ltd Income Tax - Sections 24(a), 34(1)(b), 119(1)(b), 143(3), 147, 158A, 268A - reassessment - change of opinion - review - reassess - interest free deposit. Whether a change of opinion would facilitate reassessment, in case it has been made within the four year time limit as mentioned in the provisions of the Act - Whether when a new fact comes into picture, and there is a change in the factual matrix of the case consequent thereto, it can be said to be a review only, which predicates examining the same factual matrix, which may further lead to a different view altogether of that formed earlier - Whether the power to rectify is inherent to the power of adjudication - Whether the fact that the assessment is concluded at a much higher rate is itself a strong persuasive ground, an objective basis, for forming the belief that there is an under assessment of income - Whether sufficiency of reasons is a relevant aspect, which is the existence of a reasonable belief, as to initiate proceedings on escapement of income - Whether non-filing of an appeal by the Revenue in one case could be considered as an acceptance on Revenues part of the issue decided by a lower appellate forum, so that it is at liberty to prefer an appeal before the high court or the apex court on the same issue - Whether in case a material has been considered, there is no question of it being revisited or reconsidered again, as the same would be only a review - Whether if it has been not revisited, the reasons recorded being supported by material, it would be a case of change of opinion. - Revenues appeal allowed; Assessees Cross Objection dismissed : MUMBAI ITAT 2014-TIOL-1374-HC-DEL-IT + Story CIT Vs M/s Vikas Chemicals Income Tax - s.37 - From the auction proceeds, Redemption fine imposed under the Customs Act was deducted - fault or defect in the REP licence was not attributable to the assessee and they had not indulged in any offence or incurred any expenditure for the purpose which was prohibited by law - sum of Rs.45 lakhs paid on a/c of RF is allowable expenditure - Revenue appeal dismissed: High Court - Appeal dismissed : DELHI HIGH COURT 2014-TIOL-1373-HC-ALL-IT CIT Vs Indus Plast Pvt Ltd Income Tax - Section 256(2) - U.P Trade Tax Act, 1948 - Section 11(1) Keywords: affidavit of service - revision petition Whether affidavit of service has to accompany revision application filed before the High Court - Whether if due to lack of time or for any other sufficient reason, affidavit of service is not accompanying the application filed by Commissioner of Trade Tax, any excuse could be given to the defaulter - Whether an application filed without the affidavit of service would be considered as infructuous. - Revenues appeal dismissed : ALLAHABAD HIGH COURT 2014-TIOL-1372-HC-ALL-IT Narendra Sharma Vs CIT Income Tax - Sections 143(3) & 271(1)(c) Keywords - penalty - grant of installments Whether any further opportunity of paying penalty in installments can be allowed, when the assessee has defaulted in complying with the time schedule of the previous installments. - Assessees writ petition allowed : ALLAHABAD HIGH COURT 2014-TIOL-1371-HC-KERALA-IT P J Bessy Vs ITAT Income Tax - Whether when the assessee has by his own default failed to institute a proper appeal and prosecute the same diligently before the Tribunal, the delay caused can be condoned - Whether in case the assessment of an assessee remains unchallenged and for that sole reason acquired finality, there can be any question of refund of taxes paid. - Assessees writ dismissed : KERALA HIGH COURT 2014-TIOL-1370-HC-DEL-IT CIT Vs PP Engineering Work Income Tax – Sections 68, 147,148, 149, 153, 150(1) & 150(2). Keywords: cash credit, reassessment, reassessment in pursuance of an order, limitation. Whether a finding in respect of a different year can also be used for the purposes of invoking the provisions of Section 150 of the said Act, by virtue of the deeming provision contained in Explanation 2 in Section 153 of the said Act - Whether the provisions of subsection (1) of section 150 would be applicable and the bar of limitation under section 149 would not be applicable in cases falling under clause (ii) of sub-section (3) of section 153 read with Explanation 2. - Question answered in favour of Revenue : DELHI HIGH COURT 2014-TIOL-1369-HC-MAD-IT Purshotamdas Jain Vs CIT Income Tax - Sections 158BC & 264. Whether the High Court can entertain a petition against the original order, which has repeatedly been the subject matter of appeals before the Commissioner as well as the Tribunal. - Assessees writ petition allowed : MADRAS HIGH COURT Indirect Tax Basket SERVICE TAX SECTION 2014-TIOL-1513-CESTAT-MAD Rajaram Flour Mill (P) Ltd Vs CCE Service Tax - Stay / dispensation of pre deposit - Business Auxiliary Services - process of milling/ grinding of wheat into maida, suji, atta and bran flour viewed by Revenue as not amounting to manufacture under Section 2(f) of the Central Excise Act, 1944 - demand of service tax under the category of Business Auxiliary Service adjudged and agitated herein. Held: Based on Revenues view in letter dated 18.07.2013 to the effect that the impugned process amounts to manufacture; and following earlier ruling of Tribunal, pre deposit of dues adjudged waived. - Stay granted : CHENNAI CESTAT 2014-TIOL-1512-CESTAT-DEL M/s BSNL Vs CCE & ST Service Tax – CENVAT credit – Appellant, provider of Telecom service, was also providing exempt service of inter-unit connectivity without maintaining separate account for credit availed on inputs/input services under Rule 6(2) of Cenvat Credit Rules 2004 – Revenue viewed that credit in excess of restriction placed by Rule 6(3) was utilized, demand confirmed with interest and penalty in adjudication, upheld by Commissioner (Appeals), and agitated herein. Held: Issue no longer res integra, settled by Tribunal in Idea Cellular case - even though prior to the period March 2007, the inter-connectivity services were not taxable but the same have to be treated as exempted services, in the light of definition given in Rule 2(e) of the Cenvat credit Rules, 2004, and the provisions of Rule 6(3)(c) of Cenvat credit Rules, 2004 would get attracted – However, demand in the present case relates to the period 01.10.05 to 31.05.07 and the show cause notice stands issued on 05.03.09, by invocation of the longer period of limitation - In the Idea Cellular case relied upon by the revenue, the benefit of limitation was extended to the assessee on the ground that the dispute in the case related to a bonafide interpretation of law and the Department cannot claim that they were not aware that the appellant were providing non-taxable services of inter-connectivity - In as much as the demand is wholly barred by limitation, appeal allowed with consequential relief. - Appeal allowed : DELHI CESTAT CENTRAL EXCISE SECTION 2014-TIOL-1511-CESTAT-MUM CCE & C Vs Laxmi Metal Pressing Works CE - s.4 of CEA, 1944 - Valuation - non-inclusion of the amortised cost of moulds/dies in the value of motor vehicle parts manufactured and cleared by respondent assessee - Commissioner(A) coming to a conclusion that the assessees records were audited by the department and, therefore, the demand is barred by limitation - Revenue in appeal. Held: it was the responsibility of the assessee to ascertain the correct value of the goods and discharge duty on such value - there is no evidence available on record to show that the assessee disclosed to the department the factum of non-inclusion of the amortised cost of moulds/dies in value of MV parts cleared - only conclusion that can be drawn is that the assessee suppressed the information inspite of knowing that the same was required to be added in AV - concept of knowledge on the part of the department is not a relevant factor for computation of time-limit u/s 11A of CEA, 1944 - when the law does not provide for taking into account the knowledge of the department, it is not permissible to incorporate such factor as part of the legal provision - order of Commissioner(A) is patently unsustainable in law - o-in-a set aside and o-in-o restored - Revenue appeal allowed: CESTAT [para 5.1, 5.2, 5.3] - Appeal allowed : MUMBAI CESTAT 2014-TIOL-1510-CESTAT-KOL M/s Jai Balaji Jyoti Steel Ltd Vs CCE & C Central Excise - Stay / dispensation of pre deposit – Valuation – Applicant, during the relevant period, manufactured and cleared sponge iron to independent buyers as well as to sister units - dispute arose on the determination of assessable value of the goods cleared to these two units, which the Department propose to determine, adopting the comparable selling price, at which such Applicants manufactured and sold/cleared the manufactured sponge iron to their other two sister units. Held: basis of allegation of mutuality of interest rests on the facts that the Applicant and the other two Units have common Directors and common Head Office and the other two Units were shown as related person in the Balance Sheet of the Applicant - At this stage, it is difficult to accept that merely on these facts, it could be said that there have been mutuality of interests so as to bring them within the fold of Clause (iv) of Sub-section (3)(b) of Section 4, occurring in the definition of related persons - Prima-facie, once the ingredients viz. Clause (ii) (ii) & (iv) of Sub-section (3) of Section 4, are not satisfied, the assessment of goods sold to these Units, would be in accordance with Rule 10 (b)(ii) of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - the transaction value at which, the Applicants sold/cleared the goods to these Units at the relevant time, be the assessable value for payment of duty - Applicants are able to make out a prima-facie case for total waiver of predeposit of dues adjudged; predeposit of the dues adjudged against both the Applicants is waived and its recovery stayed during pendency of the appeal. - Stay granted : KOLKATA CESTAT 2014-TIOL-1377-HC-ALL-CX + Story CCE Vs M/s Shrawasti Kisan Sahkari Chini CE - Rule-174(3) of CER, 1944 is applicable where there are more than one premises, meaning thereby different premises – when the premises is common said rule is not applicable - Assessee is entitled for common registration - order passed by the Tribunal is sustainable – Revenue reference dismissed: High Court - Reference dismissed : ALLAHABAD HIGH COURT CUSTOMS SECTION ANTI DUMPING NOTIFICATION anti_dump_039 Govt imposes definitive anti-dumping duty on Ceftriaxone Sodium Sterile CASE LAW 2014-TIOL-1509-CESTAT-DEL Hem Raj Soni Vs CCE Customs - Seizure of Indian currency on the ground that the same represents sale proceeds of smuggled silver - There is virtually no evidence on record to establish that the Indian currency in question is the sale proceeds of the smuggled silver as alleged by the Revenue - The entire case is based upon the seizure by the police and the initial statement of Shri Hem Raj, which are also contradictory in nature. He has named different person at different points of time as recorded in the impugned order. - Appeals allowed : DELHI CESTAT
Posted on: Mon, 18 Aug 2014 08:02:56 +0000
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