2018-TIOL-NEWS-052 Part 2, Dated: Monday, March 05, 2018

2018-TIOL-NEWS-052 Part 2 | Monday March 05, 2018

Dear Member,

Sending following links.

Warm Regards,
TIOL Content Team

TIOL PRIVATE LIMITED.

For assistance please call us at +91-78385-94748 or email us at helpdesk@tiol.in.

TIOL TUBE VIDEO



	Scam Wham \| simply inTAXicating

DIRECT TAX


	2018-TIOL-381-HC-AP-IT VC Nannapaneni Vs CIT Whether potential loss of future income amounts to loss, and any income derived towards the same must be treated as capital receipt - YES: HC Whether amount received under non-compete agreement for preventing the receiver from competing with the transferee companies in respect of specified products in specified areas, amounts to 'loss of capital', and not 'profit' - YES: HC Whether in the absence of any non-competition agreement, it can be inferred that merely because the pharma company was at the relevant time using the technical know-how possessed by the assessee, the latter was barred from using the same in future - NO: HC - Assessee's appeal allowed: ANDHRA PRADESH HIGH COURT 2018-TIOL-337-ITAT-DEL Prathama Bank Vs ADDL CIT Whether since revisional order u/s 263 providing for de-novo adjudication is set aside by the Tribunal, original assessment order will still survive - YES: ITAT - Assessee's appeal allowed: DELHI ITAT 2018-TIOL-336-ITAT-DEL Harinder Kumar Bhatia Huf Vs ITO Whether assessee deserves another opportunity, even though, during the remand proceeding, it had only partially fulfilled the Tribunal's direction in order to ascertain the genuineness of the gift and creditworthiness of the donor - YES: ITAT - Case Remanded: DELHI ITAT 2018-TIOL-329-ITAT-DEL Tushar Kothari Vs DCIT Whether addition can be made of an amount received from a company by its director, as deemed dividend u/s 2(22)(e), where the recipient is not a shareholder in such company - NO: ITAT - Assessee's Appeal Allowed : DELHI ITAT 2018-TIOL-328-ITAT-DEL DCIT Vs United Concept and Solution Pvt Ltd Whether expenses can be disallowed merely because they increased in the relevant AY, without their being any evidence showing that they deliberately have been inflated or are bogus in nature - NO : ITAT - Revenue's Appeal Dismissed : DELHI ITAT 2018-TIOL-327-ITAT-KOL DCIT Vs Universal Industrial Fund Ltd Whether disallowance of interest income can be made u/s 14A, where after setting off interest expense against interest income, no further interest income remains - NO: ITAT - Revenue's Appeal Dismissed : KOLKATA ITAT

INDIRECT TAX

SERVICE TAX SECTION

2018-TIOL-718-CESTAT-ALL

Sharma Cement Clearing Agency Vs CCE & ST

ST - Assessee entered into a contract with Shree Cement Ltd. (SCL) and handling Agent-Cum-Sale Promoters - Said agreement was further extended vide a new agreement under which assessee was entitled for reimbursement of expenses of loading & unloading, as well as transportation of goods, godowns clearance work, supervision & sales promotion and supervision on direct non-trade (real supply) - Assessee have shown the charges for C & F service and transportation /GTA separately in their bills - Ruling of Tribunal in Balmer Lawrie & Company Ltd. 2013-TIOL-1189-CESTAT-MUM squarely covers the issue - Accordingly, assessee have rightly discharged the service tax and on GTA service, the recipient or principal of assessee have discharged service tax on reverse charge basis - It is noted from certificate issued by Superintendent of Central Excise & Service Tax that M/s SCL have discharged its liability under provisions of Rule 2(1)(d)(v) of STR, 1994 for payment of service tax with reference to GTA service availed, either as consignor or consignee and said SCL has duly deposited the service tax and filed all the returns to office of Central Excise for compliance of service tax provisions for period up to 31/03/2013 - Demand of service tax, again on the same transaction from assessee is bad in spite of Department accepting the service tax paid by recipient of service on reverse charge basis - Accordingly, impugned order set aside - As appeal decided on merits, question of limitation left open: CESTAT - Appeal allowed : ALLAHABAD CESTAT

CENTRAL EXCISE SECTION

2018-TIOL-721-CESTAT-DEL

Flavours Ltd Vs CCE

CX - Assessee is manufacturer of chewing tobacco packed in retail pouches - The dispute in this case is for months of June 2012, July, 2012 and February 2013 - The main grievance is that in terms of Rule 10 there is a provision to grant abatement in case of non production of goods on a particular machine which is sealed on due intimation - For the period for which the new machines have been used in the month, duty has already been paid - Accordingly, assessee has claimed that the entire demand is without justification - In each of months of June and July, 2012 and February, 2013, the assessee has installed one new machine which has operated only for one or two days in respective months - The proportionate duty for period for which machine has worked has also been paid - But Adjudicating Authority has taken the view that duty on machines is required to be paid for entire month in terms of Rule 8 of relevant rules, but the same is to be restricted to period for which the factory itself was working - The Adjudicating Authority has taken the view that newly added machine will be covered by Rule 8 and is to be deemed to have been working for the full month - However, since the factory itself was closed for 25 out of 30 days, abatement under Rule 10 will be available even for the new machine and consequently duty has been charged on the new machine for the period of five days only when the factory was working - In this regard, it is submission of assessee that the duty in respect of new machine would be payable only for period for which it has worked - Since, the same has already been paid it was claimed that there is no justification for demand of any further duty - The view taken by Adjudicating Authority by a conjoined reading of Rule 8 and 10 merits to be upheld - In respect of the three months in dispute, it is not in dispute that the factory was closed for more than 15 days - By reading together Rule 8 and 10, in respect of the new machines added, duty is required to be paid for the entire period for which factory was working - Since, the demand has been confirmed by the Adjudicating Authority only on the above basis is upheld: CESTAT - Appeals dismissed : DELHI CESTAT

2018-TIOL-720-CESTAT-BANG

Milestone Aluminium Company Pvt Ltd Vs CCE , ST & C

CX - the assessee-company manufactured structural glazings & availed Cenvat credit - The Revenue opined that the assessee had manufactured and cleared structural glazings from their factory to their own selves without payment of duty, by wrongly availing the exemption from excise duty meant for clearances made to a unit or developer in SEZ - The Revenue further claimed that clearances made to the developer in the SEZ were not notified in Rule 6(6) of CCR, 2004 - Thereby, an SCN was issued and duty demand was raised - The same was upheld by the Commr.(A) -

Held - The issue is no more res integra and stands settled in judgment of Sujana Metal Products vs. CCE wherein it was held that supplies made to SEZ from DTA were deemed exports - Thus an assessee was entitled to the benefit of Cenvat credit and was not required to maintain separate account for dutiable and non-dutiable goods - Therefore, duty demands set aside: CESTAT (Para 2,6) - Appeal allowed : BANGALORE CESTAT

CUSTOMS SECTION

PUBLIC NOTICE

dgft17pn064

Amendments in Appendix 4J of Hand Book of Procedures 2015-20

CASE LAW

2018-TIOL-717-CESTAT-CHD

Wire Concepts Vs CC

Cus - Issue relates to refund claim of assessee rejected on time bar - Refund claims pertained to period prior to 01.08.2008, when the limitation of one year was introduced for the first time - The issue required to be decided is as to whether such amendment would be retrospective stands considered by Delhi High Court in case of Sony India Pvt. Ltd. 2014-TIOL-532-HC-DEL-CUS - It stands held that the limitation introduced for Notfn 93/2008-CUS will not have any retrospective effect and will not apply to imports made prior to said date, even though the refund claims were filed subsequently - Inasmuch as, issue stands, no merits found in impugned order of Commissioner (A), same is accordingly set aside: CESTAT - Appeal allowed : CHANDIGARH CESTAT

MISC CASE

2018-TIOL-368-HC-MAD-VAT

Suresh Enterprises Vs Assistant Commissioner (ST)

Whether a registered dealer is entitled to adjust the excess tax against its tax liability, when the input tax credit determined by AO for a year exceeds the tax liability - YES: HC - Assessee's petition allowed : MADRAS HIGH COURT

FLASH NEWS

DRI officers with BSF help seize 2058 kg of ganja from truck in Shillong

US Commerce Secretary sees no justification in continued tax concessions to Germany & China

China's hiked defence budget of USD 175 bn is three times more than that of India

Predictably, protests by Opposition leads to Lok Sabha adjournment till tomorrow