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2018-TIOL-NEWS-010 Part 2 | Wednesday January 10, 2018
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Dear Member,
Sending following links. Warm Regards,
TIOL Content Team
TIOL PRIVATE LIMITED.
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DIRECT TAX |
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CIRCULAR
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Income tax - Sec 143(1)(a)(vi) being applied first time for adjustment - CBDT launches awareness drive before adjustment is made
CASE LAWS
2018-TIOL-09-SC-IT
CIT Vs Lalit Kumar Bardia
Having heard the parties, the Supreme Court condoned the delay and dismisses the SLP, thus concurring with the opinion of Writ Court on the issue of validity of "notice u/s 158-BC" & "restrospective transfer of proceedings u/s 127". - Revenue's SLP dismissed : SUPREME COURT OF INDIA
2018-TIOL-08-SC-IT
PR CIT Vs Vardhman Industires Ltd
Having heard the parties, the Supreme Court condoned the elay and dismisses the SLP, thus concurring with the opinion of Writ Court on the issue of viability of Compound Levy Scheme in case of sales tax. - Revenue's SLP dismissed : SUPREME COURT OF INDIA
2018-TIOL-55-ITAT-AMRITSAR
Ganpati Synthetics Pvt Ltd Vs ACIT
Whether order of settlement is to be considered as conclusive and cannot be reopened in any proceeding under the Act in ordinary circumstances - YES: ITAT
Whether Settlement Commission has power to reopen completed proceedings, if it is neccesary for the proper disposal of case pending before it - YES: ITAT - Assessee's appeal allowed: AMRITSAR ITAT
2018-TIOL-54-ITAT-MUM
Hitesh Tilokchand Bohra Vs ITO
Whether additions made on account of bogus purchases, by relying on binding judicial pronouncements as well has taking into account margin earned by assessee, needs no interference - YES: ITAT - Assessee's appeal dismissed: MUMBAI ITAT
2018-TIOL-53-ITAT-KOL
Bardhaman Cyber Research and Training Institute Vs ITO
Whether non-compliance of notice u/s 147 by assessee for reasons beyond his control, should not be overlooked to deny opportunity of hearing to him - YES: ITAT - Case remanded: KOLKATA ITAT
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INDIRECT TAX |
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SERVICE TAX SECTION
2018-TIOL-143-CESTAT-MAD
Indian Chemicals and Minerals Vs CCE
ST - Assessee engaged in trading of Limestone and minerals and are registered with ST department under category of GTA - They paid service tax on inward and outward freight for period 1.1.2005 to 31.3.2005 and after 1.4.2005, they stopped paying service tax - SCN was issued for non-payment of service tax for period 1.4.2005 to 28.2.2006 - After due process of law, the original authority confirmed the demand alongwith interest and also imposed penalties under Section 76,77 and 78 of FA, 1994 - Assessee has submitted that they do not wish to contest the liability to pay service tax and is confining the contest with regard to demand on the eligibility of abatement - Assessee has to furnish necessary document / declaration to avail the benefit of 75% abatement in terms of notfn 32/2004 - In Radhu Industries , the Tribunal has held that new conditions cannot be added to a notification by issuing circulars - The issue whether assessee is eligible for abatement has to be verified by adjudicating authority for which the matter requires to be remanded - At the stage of adjudication as well as at first appellate stage, assessee has strongly contested that they would not be covered by definition of GTA as they were only a proprietory concern - It might have been due to wrong legal advice - During the relevant period there was much doubt regarding the definition of GTA - Assessee has put forward reasonable cause for non-payment of service tax and the penalties under Section 76 and 78 are required to be waived - The penalties imposed under Section 76 and 78 are hereby set aside: CESTAT - Appeal partly allowed: CHENNAI CESTAT
2018-TIOL-142-CESTAT-DEL
CCE Vs KBS Security Organization
ST - Assessee engaged in providing taxable service under category of security and manpower supply service - The dispute arose regarding service tax liability of assessee with reference to quantification of such liability and its timely payment - Both the sides in present appeals are correct in their claim that the order did not justify the final conclusion by supporting details - In other words, quantification as arrived at by impugned order is to be based on documents maintained by assessee and as cross verified by Jurisdictional officer - Further, various claims made by assessee were not discussed for a conclusion - As such, grievance of both the sides are justified - Regarding adjustment towards service tax already paid, impugned order did not elaborate the basis on which such adjustment is made - On the point raised by Revenue regarding the adjustment amounts has included normally discharges service tax, such possibility has not been examined in impugned order for a clear finding - In any case for both quantification of tax liability as well as adjustment towards already paid tax basic verification with connected documents by Jurisdictional officer is a basic requirement - Since, the issue involved is basically about factual verification and quantification, matter remanded to Original Authority for fresh consideration: CESTAT - Matter remanded: DELHI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-146-CESTAT-AHM
CCE, C & ST Vs Shree Chalthan Vibhag Khand Udyog Sahakari Mandali Ltd
CX - the assessee manufactured Sugar and Molasses - On audit, the Revenue alleged that the assessee incorrectly availed credit on HR Coils, CR/SS Sheets, MS Channel/Angles etc., which were used in the fabrication of Capital Goods - The Revenue claimed that such items were not valid input goods - Duty demand was raised for recovery of the same with interest & penalty - Later, the Commr.(A) allowed the assessee's appeal -
Held - The issue stands settled by the Tribunal decision in Singhal Enterprises Ltd - Following the same, demands raised by the Revenue set aside: CESTAT (Para 3,6) - Appeal Dismissed: AHMEDABAD CESTAT
2018-TIOL-145-CESTAT-MUM
CCE Vs Badve Autocomps Pvt Ltd
CX – Appellant had two units, one of which was active and the other was closed – Facts are that the respondent by mistake deposited certain amount in the account of the closed unit and later transferred the amount to the account of the active unit – Revenue is in appeal against dropping of the demand of Central Excise duty and imposition of penalty by the Commissioner(A) - Ground of Revenue appeal is that since both the units are separately registered, they could not have transferred the amount paid against one registration number to another and that the only option for the assessee was to file a refund; that suo motu adjustment is not permissible.
Held: Commissioner(A) has simply gone on the basis of equity and allowed the benefit – It is seen that there is no procedure for such transfer in Central Excise law – Larger Bench in case of BDH Industries - 2008-TIOL-1211-CESTAT-MUM-LB has also held that suo motu refund is not permissible without department's sanction – Respondent assessee can, however, claim refund of duty deposited in respect of closed unit but cannot take credit on their own – Revenue appeal allowed: CESTAT [para 5, 6] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-144-CESTAT-MUM
CCE Vs Ghatge Patil Industries Ltd
CX – Refund was sanctioned to the appellants and transferred to the Consumer Welfare Fund – later, refund was allowed by adjudicating authority following Tribunal decision – Commissioner(A) granting interest on the refund sanctioned – Revenue in appeal contending that no interest would be payable if the amount was lying in Consumer Welfare Fund and not with department.
Held: Appeal of revenue is solely based on the decision of the High Court of Gujarat in Manisha Pharmo Plast Pvt. Ltd. - It is seen that subsequent to the said decision of the High Court, the Apex court decision, in case of Ranbaxy laboratories Ltd. - 2011-TIOL-105-SC-CX , has laid down the law in this regard that appellant is eligible for interest from three months after the date of filing of the refund application till the date of sanction of refund – Revenue appeal dismissed: CESTAT [para 4, 5] - Appeal dismissed: MUMBAI CESTAT
CUSTOMS SECTION
2018-TIOL-147-CESTAT-AHM
Fazal Faruk Patel Vs CCE, C & ST
Cus - Issue is regarding demand of Customs Duty, confiscation of goods, consequent redemption fine and penalties along with interest on goods cleared to DTA - Assessee, a unit situated in SEZ area has cleared the goods from SEZ to DTA though he had filed Bills of Entry on behalf of DTA unit, discharged duty liability on behalf of DTA unit as is mandated - It is conceptually clear that clearance made from a SEZ to DTA are considered as imports for DTA unit and provisions of Customs Act 1962 would apply in full force to such imports - Undoubtedly the goods got cleared from SEZ unit and was examined in DTA wherein some discrepancy were found out, if that be so, the importer of said goods from DTA is required to discharge duty, if any, is the law as it is not the case of Revenue that the importers were non-existent - Provisions of Section 2(26) of Customs Act, 1962 clearly defines who is importer, which would indicate that after clearance of goods who has to be considered as importer - Assessee cannot be considered as an importer - Accordingly, no duty liability arises and hence goods even if they are liable for confiscation no duty liability arises on assessee - Examination report of appraisal indicates that there were mutilation in them form of deep-cuts on the old used rags which was the requirement of Board's Circular instruction before clearance of such goods into DTA - Both the lower authorities have misconstrued this to arrive at a narrow view that Board Circular requires cuts in a particular fashion then only the goods can be considered as mutilated goods: CESTAT
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MISC CASES |
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