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2018-TIOL-NEWS-058 Part 2 | Monday March 12, 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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Lalitpur Power Generation Company Ltd Vs ACIT
Whether non-application of sec 194C towards a contractual payment will by itself provides for deemed application of sec 194J - NO: HC
Whether contractual payment made by a special purpose vehicle can be treated as 'FTS' so as to attract TDS obligation u/s 194J even if, such payment was not for rendering any technical services - NO: HC - Assessee's appeal partly allowed: DELHI ITAT
2018-TIOL-418-HC-DEL-IT
PR CIT Vs Rallison Electricals Pvt Ltd
Whether apportionment of interest expenditure on basis of sales, is justified, in case the assessee has failed to produce actual figures - YES: HC - Revenue's appeal dismissed: DELHI HIGH COURT
2018-TIOL-366-ITAT-DEL
DCIT Vs Unitech Reality Pvt Ltd
Whether relief granted to Assessee by Appellate authority without recording any proper justification for the same, is a non-speaking order and hence, calls for adjudication afresh - YES: ITAT - Case Remanded DELHI ITAT
2018-TIOL-365-ITAT-KOL
ACIT Vs Webel Technology Ltd
Whether assessee can withdraw his legitimate mistake by way of filling revised computation of income, in order to avoid double disallowance - YES: ITAT - Rvenue's appeal dismissed: KOLKATA ITAT
2018-TIOL-364-ITAT-MUM
DCIT Vs Wind World (India) Ltd
Whether mere drawing of inferences by AO on the basis of facts pertaining to subsequent years, can form a basis for reopening assessment - NO: ITAT
Whether ITO can assume jurisdiction u/s 147, simply to disturb the concluded assessment framed u/s 143(3) - NO: ITAT - Revenue's appeal dismissed: MUMBAI ITAT
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INDIRECT TAX |
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SERVICE TAX SECTION
2018-TIOL-793-CESTAT-ALL
Ashoka Auto Sales Ltd Vs CCE
ST - Assessee is registered for payment of ST under various categories of service including BAS - It appeared to Revenue that assessee is receiving commission for arranging loans for customers and also sales and other incentives from Tata Motors for promoting or marketing the goods but are not paying any Service Tax on said Business Auxiliary Services - So far the sales and other incentives are concerned, same are in nature of trading receipts received by way of trade discounts and as such not tenable - So far as commission received from banks and financial institutions are concerned, relationship between assessee and the banks and/or financial institutions is on 'Principle to Principle basis' - Both are promoting each other business - Assessee is interested in sale of vehicle whereas financial institutions or banks are interested in disbursement of loan for earning interest - Therefore, no particular activity done by assessee is identified vide has the element of promoting business of such banks and institutions save and except permission to use their premises or table space - Incentive or discount or commission received from banks and institutions does not lead to the conclusion that assessee provided service to them - At the most, it may be in nature of business support service which is not the case made out in the SCN - Accordingly, Service Tax is not payable on commission bank/financial institution.
So far the hire purchase commission is concerned, such charges are being received from buyers of vehicles for assisting in registration insurance of vehicles which is an essential requirement under Motor Vehicle Act and the said receipts are not chargeable to Service Tax - So far as the job work charges are concerned, Commissioner has himself held that the same is not taxable under BAS but under Authorized Service Station charge, which was not the case made out in SCN and as such the demand of service tax on these charges is not tenable - Further, receipts for service of commercial vehicle is not taxable under category of 'Authorized Service Station' - So far the Freight received from customers/Tata Motors is concerned, essential element of GTA that issuance of consignment notes was not done by assessee and thus, the same cannot be liable to Service Tax as a GTA - Accordingly, no Service Tax is payable on this score also: CESTAT - Appeals allowed: ALLAHABAD CESTAT
2018-TIOL-792-CESTAT-MAD
Bharat Heavy Electricals Ltd Vs CCE
ST - Assessee engaged in manufacture of boilers, steam generators and water tube boilers and availed the services of consulting engineers for which they have discharged service tax as a service recipient under section 68(2) of FA, 1994 read with Rule 2(1)(d)(iv) of STR, 1994 - As per the contract, consideration was payable in four equal instalments - While paying the first three instalments, assessee did not pay service tax on TDS portion - Thus, a show cause notice was issued - However, service tax along with interest was discharged by assessee even before issue of show cause notice on being pointed out by audit team - In case of C. Ramachandran 2016-TIOL-2220-CESTAT-MAD the Tribunal has held that in such situation penalties ought to be waived by invoking section 80 of Finance Act - A similar view has been taken in case of M/s. Magarpatta Township Development & Construction Co. Ltd. 2016-TIOL-660-CESTAT-MUM - Following the said judgments, impugned order is modified to the extent of setting aside the penalties imposed under sections 76 and 78 without interfering with the demand of service tax or interest and penalty imposed under section 77: CESTAT - Appeal partly allowed: CHENNAI CESTAT
CENTRAL EXCISE SECTION
2018-TIOL-429-HC-KAR-CX
CCE, C & ST Vs Nugget Tyres
CX - Revenue claimed that the assessee-company was providing some taxable services, classifiable under heading 'Management or Maintenance or Repair Service' - The assessee claimed that its activities amounted to manufacture, and hence no service tax could be levied - The assessee then claimed that the service was in fact 'Works Contract Service' - Subsequently, the Revenue's appeal was dismissed by the Tribunal, on grounds that the service tax amount was less than Rs 10 lakhs.
Held - The issue at hand pertains to classification of taxable service - In this regard, considered relevant findings of this Court in Commissioner of Service Tax Vs. M/s. Scott Wilson Kirkpatrick (India) Private Limited - The Revenue's appeal against this judgment was dismissed - The issue of classification of service is not maintainable before this Court u/s 35G - Considering the Litigation Policy in F.No.390/Misc./163/2010-JC dated 17.12.2015, no appeal is maintainable where the service tax amount in dispute is less than Rs 10 lakhs - As it is, the Tribunal clarified that a case dismissed under such policy would not be a precedent for future cases - No interference warranted: High Court (Para 1,2,7) - Appeal Dismissed: KARNATAKA HIGH COURT
2018-TIOL-791-CESTAT-ALL
Keshav Resin Coats Pvt Ltd Vs CCE
CX - Whether the refund claim made by assessee is hit by doctrine of unjust-enrichment - Assessee, being a SSI Unit, not registered with Central Excise Department and cannot have charged Central Excise duty from their buyers - Further, from the facts on record and from the copy of invoice produced by way of sample, it is clear that no Central Excise duty have been charged from the buyers of goods - Thus, whatever amount the assessee collected have to be treated as cum-duty price - Under such facts and circumstances, adjudicating authority in Order-in-Original has rightly allowed the refund of excess duty paid along with interest under the rules - Accordingly, order of Commissioner (A) is not tenable and same is set aside - Assessees are entitled for component of interest which they have deposited along with duty: CESTAT - Appeals allowed: ALLAHABAD CESTAT
2018-TIOL-790-CESTAT-DEL
Shri PSL Engineering Pvt Ltd Vs CCE
CX - Assessee engaged in manufacturing of Tippers and Truck body and mounted the tippers and truck body on the chassis supplied by M/s. Tata Motors Ltd. and availed the cenvat credit on duty paid chassis supplied by Tata Motors Ltd. - The department is of the view that valuation will have to be done under Rule 10A of CEVR, 2000 - Identical issue has came up before the Tribunal in M/s. Audi Automobiles 2009-TIOL-1288-CESTAT-DEL - By following the same, levy of penalty cancelled and duty demand will sustain: CESTAT - Appeal partly allowed: DELHI CESTAT
2018-TIOL-789-CESTAT-AHM
IMP Power Ltd Vs CCE & ST
CX - Assessee was issued with SCN for recovery of excise duty on parts of transformers, cleared under returnable gate passes, but not returned to the factory and Cenvat credit on the input services, namely, Erectioning and Commissioning charges and clearing and forwarding charges - All along in panchnama as well as in statements, it has been mentioned that parts have been cleared by assessee as replacement of worn out/ damaged parts to transformers and no excise duty was paid on the same - Consequently, assessee had paid excise duty - Assessee on the basis of Chartered Engineer Certificate claims that these items are neither manufactured by them nor any Cenvat credit availed, therefore, demanding duty on same is bad in law - Regarding admissibility of Cenvat credit on erection and commissioning charges, issue is covered in Alidhara Textile Engg. Pvt. Ltd.'s case 2009-TIOL-370-CESTAT-AHM and Clearing and Forwarding service is covered by judgment of High Court in Inductotherm Ltd. 's case 2014-TIOL-2678-HC-AHM-ST - Order confirming penalty against Aditya Ramniwas Dhoot is unsustainable: CESTAT - Appeals partly allowed: AHMEDABAD CESTAT
CUSTOMS SECTION
2018-TIOL-794-CESTAT-BANG
Ranger Apparel Export Pvt Ltd Vs CC & ST
Cus - Assessee has imported goods during period March 2011 and April 2011 by claiming exemption of special additional duty under notfn 20/2006/Custom and notfn 21/12/Custom - Department of Intelligence found that assessee has imported goods wrongly by claiming exemption under said notfns - Thereafter a SCN was issued and the duty was confirmed along with interest and same was paid by assessee along with interest - Bill of Entry in this case was filed on 31.03.2011 and the assessee was not aware of withdrawal of exemption at that time, and therefore there was no intention to evade as he has paid the duty along with interest - Imposition of penalty is not warranted: CESTAT - Appeal allowed: BANGALORE CESTAT
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