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2018-TIOL-NEWS-013 Part 2 | Monday January 15, 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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2018-TIOL-16-SC-IT
Chintels India Ltd Vs DCIT
Having heard the parties, the Supreme Court condoned the delay and the SLP is dismissed. - Assessee's SLP dismissed: SUPREME COURT OF INDIA
2018-TIOL-95-ITAT-KOL + Story Nikhil Banik Mazumder Vs JCIT
Whether a transaction of loan between the father and the son or between the husband or wife falls within the domain of provisions of Sec 269SS - NO: ITAT
Whether a financial transaction within the family members is covered by the provisions of Sec 269SS - NO: ITAT - Assessee's Appeal Allowed: KOLKATA ITAT
2018-TIOL-86-HC-DEL-IT
PR CIT Vs Mohan Export India Pvt Ltd
Whether the commission expenditure incurred by the assessee to secure contracts and to ensure timley payments, can be linked with its business - YES: HC
Whether therefore, the assessee's claim of commission remitted so made is justified u/s 37 - YES: HC
Whether the income generated by the assessee dealing with export transactions which increases the foreign exchange resources, is subjected to taxation - YES: HC - Revenue's appeal dismissed: DELHI HIGH COURT
2018-TIOL-87-ITAT-PUNE
Balkrishnan Shanmugham Chettiar Vs DCIT
Whether when the Tribunal after considering all the relevant materials already granted deduction u/s.80IA(4)(iii) to the assessee in previous years, the rule of consistency should be followed and deduction should be allowed - YES: ITAT - Assessee's appeal partly allowed: PUNE ITAT
2018-TIOL-86-ITAT-MUM
Arnav Gruh Ltd Vs DCIT
Whether when AO fails to record any satisfaction as per the mandate of section 14A(2) r/w rule 8D(1), the CIT(A) cannot step into the shoes of the AO for correcting the lapse committed by him and therefore, addition made by the CIT(A) is unsustainable - YES: ITAT
Whether when issue regarding suo-motu disallowance made u/s 14A, raised by the assessee for the first time before the CIT(A), the matter should be remand back for giving a fair opportunity to the Revenue to give its view on assessee's claim - YES: ITAT - Assessee's appeal partly allowed: MUMBAI ITAT
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INDIRECT TAX |
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SERVICE TAX SECTION
2018-TIOL-202-CESTAT-MUM
Renuka Constructions Vs CCE & ST
ST - Construction of Residential Complex service - ST demand paid by appellant along with interest before issuance of SCN - appellant before CESTAT seeking waiver of penalty. Held: Issue of of levy was matter of dispute before the High Court and was under challenge and in such case it cannot be said that the Appellant had intention to evade tax or they had any malafide intention - no reason to impose penalty under section 77 and 78 of the Finance Act, 1994 - impugned order modified to the extent that the penalties imposed u/s 77, 78 are waived, however, the demand of service tax along with interest is maintained - appeal partly allowed: CESTAT [para 5 to 7] - Appeal partly allowed: MUMBAI CESTAT
2018-TIOL-201-CESTAT-MUM
CCE Vs Seven Hill Construction
ST - Respondents are engaged in providing services of transport of goods by road and mining services - Alleging that the activity falls under category of ‘Cargo Handling Service' demand raised and confirmed by original authority, however, same was set aside by Commissioner(A), therefore, Revenue in appeal before CESTAT. Held: As per the work order, it is clear that the service being provided is in respect of construction of roads, therefore, the same is eligible for exemption as per notfn. 17/2005-ST - services involved is correctly classifiable under Site formation and clearances, excavation and earth moving and demolish service provided for construction of road of National Highway and same is exempted as per 17/2005-ST- Bench concurs with the impugned order of Commissioner(A) - Revenue's appeal is dismissed: CESTAT [para 6, 7] - Appeal dismissed: MUMBAI CESTAT
2018-TIOL-200-CESTAT-DEL
GR Constructions Vs CCE
ST - Assessee engaged in providing services of erection, commissioning or installation at petrol pump site - They claimed that this was 'Works Contract' service which came into existence on 01.06.2007 - The assessee submit that it does not come under the clutches of Service Tax as the period falls prior to this date - For the purpose, he relied on the ratio laid down in case of Larsen & Toubro Ltd. & Ors. - On the other hand, revenue submits that it was not a 'Works Contract' service as the same has not been examined by lower authorities - When it is so, impugned order set aside and matter remanded to original authority to decide the issue de novo: CESTAT - Matter remanded: DELHI CESTAT
2018-TIOL-197-CESTAT-MUM
Sanghi Organisation Vs CCE
CX - Appellant is engaged in the manufacture of final product namely Acetylene Gas Generator - case of the department is that the value of accessories which are sent for erection and installation at site should be included in the assessable value of Acetylene Gas Generator. Held: Identical issue in appellant's own case has already been decided by the Tribunal vide order dated 20.10.2004 by rejecting the Revenue appeal, against the order of Commissioner(A), holding that value of bought out items cannot be added to the AV of Acetylene Gas Generator as such items are supplied at the site where the plant (Acetylene Plant) is erected – the above order of the Tribunal has attained finality as no further challenge was made by Revenue – Impugned order set aside and appeal allowed: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-196-CESTAT-MUM
Nocil Ltd Vs CCE
CX - Penalty imposed on appellant in respect of wrongful credit availed which the appellant failed to reverse on time - appeal to CESTAT. Held: Appellants have voluntarily reversed the wrongly availed credit when the same was pointed out by CERA - The amount of credit involved is miniscule as compared to the size of the appellant - bonafide behavour - no intention to evade duty - penalty is set aside - Appeal allowed: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT
2018-TIOL-195-CESTAT-DEL
Hindustan Coca-Cola Beverages Ltd Vs CCE
CX - the assessee-company maufactured aerated water, fruit juice & fruit pulp-based drinks - The assessee availed Cenvat credit on Outdoor Catering Service availed in assessee's factory, fr providing food to employees - The Revenue denied such credit on grounds that such input service was a perquisite for the employees & had no relation to the manufacture of final products from the factory - Duty demand, raised to recover credit so availed, along with interest, was dropped - Later, the Commr.(A) upheld the demand on grounds that outdoor catering was specifically excluded from the ambit of input services for availing Cenvat credit, where primarily used for consumption of employees - The Commr.(A) relied upon a clarification DOF No. 334/3/2011 - TRU dated 28.2.11 - Held - Apparently, the Commr.(A) was misdirected, having read the term 'employees' instead of 'employee' in the exclusion clause C of the clarification - Further, the Commr.(A) did not follow a Tribunal order involving the same assessee, which was squarely applicable to the case - Thus, the O-i-A is erroneous and stands vititiated: CESTAT (Para 2,3,6) - Appeal Allowed: DELHI CESTAT
CUSTOMS SECTION
CIRCULAR/ INSTRUCTION/ NOTIFICATION
circ02-2018
Know Your Customer (KYC) norms-regarding
cscus_instruction1_2018
Classification of Telecommunication Antenna used at Base Transceiver Station/NodeB/eNodeB
cnt05_2018
CBEC modifies tariff value for Palm Oil, Palmolein, Soyabean Oil, Gold & Silver
CASE LAWS
2018-TIOL-199-CESTAT-KOL
Bhaskar Chakraborty Vs CC
Cus - During the period of dispute, the appellants herein were Customs department officers of the rank of Inspector - The Department detected a case of fraudulent export of goods & a huge claim for duty drawback by the exporter - Duty demand was raised with interest & penalty being imposed on the exporter for recovery of the drawback erroneously claimed - Penalties were also imposed on the appellants - Held - Apparently, no notice u/s 155(2) of the Act was served to the appellant-officers, within the stipulated period - Where no notice was issued, no penalty could be imposed - Following the Tribunal's decision in Suvasis Banerjee & Others Vs. Commr. of Customs (Prev.), West Bengal , issue resolved in favor of the appellant-officers: CESTAT (Para 2,4,6) - Appeals Allowed: KOLKATA CESTAT
2018-TIOL-198-CESTAT-MUM
Bajirao Ghosalkar Bhavin Choksi Vs CC
Cus - Necessary notification u/s 21 of the SEZ Act, 2005 was framed and notified in Gazette of India on 5.8.2016 to take cognizance of the offence committed u/s 111 of the Customs Act, 1962 to be an offence committed under SEZ Act, 2005 - It is well settled position of law that no penalty can be imposed on commitment of an alleged offence under Customs Act, 1962 without authority of law prior to 5.8.2016 to take cognizance thereof under SEZ Act - While notification is part of statute, it cannot be said that without such notification there was power vested on Customs authorities to penalise an action not cognizable under SEZ Act, 2005 - It is also settled principle of law that the Gazette being an official document of the Government to convey its intention and decision, without such decision, it cannot be presumed that the authorities were vested with the power before the date of issuance of such notification - all appeals are allowed: CESTAT [para 3 to 5] - Appeals allowed: MUMBAI CESTAT
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MISC CASE |
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