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2018-TIOL-NEWS-210 Part 2 | Thursday September 06, 2018
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Dear Member,
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TIOL Content Team
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2018-TIOL-1446-ITAT-MUM
ITO Vs Kershaw Burjor Colabawalla
Whether a decision rendered by the High Court is binding upon the ITAT when, the Apex Court has not stayed the operation of the referred judgment - YES: ITAT
- Revenue's appeal dismissed: MUMBAI ITAT
018-TIOL-1445-ITAT-MUM
Eon Aviation Pvt Ltd Vs DCIT
Whether when the AO has issued the SCN u/s 274 without discarding the irrelevant portion of the notice and also levied penalty under wrong provisions of the Act then, the same is not justified - YES: ITAT
- Assessee's appeal allowed: MUMBAI ITAT
2018-TIOL-1444-ITAT-AHM
Flexican Bellows And Hoses Pvt Ltd Vs ACIT
Whether the AO can impose penalty if the assessee fails to provide any supporting documents for its claim towards commission payment - YES: ITAT
- Assessee's appeal dismissed: AHMEDABAD ITAT
2018-TIOL-1443-ITAT-DEL
DCIT Vs New Delhi Young Mens Christian Association (YMCA)
Whether merely because some charges are collected by a society, it would not lose its character of having been established for a charitable purpose - YES: ITAT
- Revenue's appeal dismissed: DELHI ITAT
2018-TIOL-1442-ITAT-KOL
Rajesh Pagaria Vs ITO
Whether expenditure made by the assessee through credit cards can be treated as unexplained, merely because the same is not reflected in the cash flow statement - NO: ITAT Whether therefore, addition made by the AO u/s 68 should be deleted and matter warrants remand to the file of AO to verify the claim of the assessee - YES: ITAT
Whether in case of non deduction of tax at source, provisions of section 40(a)(ia) can be invoked to disallow the claim only while calculating income under the head "profits and gains of business or profession" - YES: ITAT
- Assessee's appeal allowed: KOLKATA ITA
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INDIRECT TAX |
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SERVICE TAX
2018-TIOL-2739-CESTAT-MAD
Cosmopolitan Club Vs CST
ST - The Revenue confirmed demand against the assessee and took a view that subscription and other fees collected from the members of such clubs, associations is a taxable income u/s 65 (25) (a) as well as service liable to duty u/s 65(105) (zzze) of FA, 1994 - Both Revenue and assessee filed cross appeals.
Held: It is seen that Revenue filed four appeals against the order under challenge which has been set aside - The issue in dispute is covered by the cases of Ranchi Club Ltd. vs. CCE CE&ST and Sports Club of Gujarat Ltd. vs. UOI wherein it was held that there cannot be service tax liability on the amounts collected by the clubs under various categories from their members - In respect of fees for sports, card or games collected from members as well as donations from members as well as non-members these amounts would not in any way come within the ambit of amounts received against provision of services - They are not liable to service tax under the Finance Act, 1994 - Hence, the order under challenge is upheld : CESTAT (para 2, 5,6, 7)
- Revenue's Appeal Dismissed: CHENNAI CESTAT
CENTRAL EXCISE
2018-TIOL-2743-CESTAT-MUM
Deputy Chief Manager Printing and Stationery Central Railway Vs CCE
CX - Issue is whether the Stationery being printed in the name of the Railways can be said to be marketable and hence excisable.
Held: In the appellant's own case being Deputy Chief Manager (Printing & Stationery), Central Railway vs. CCE, Mumbai vide Final Order no. A/1140-1144/15/EB dated 06.05.2015 - 2015-TIOL-1024-CESTAT-MUM , it is held that goods being printed with name and details of the Central Railway is not capable of being bought and sold for consideration, hence the same is not marketable goods and consequently not dutiable - following the same, impugned order is set aside and appeal is allowed with consequential relief: CESTAT [para 2, 3]
- Appeal allowed: MUMBAI CESTAT
2018-TIOL-2742-CESTAT-DEL
Incopac Parts Pvt Ltd Vs CCE & CGST
CX - The assessee is a 100% EOU - For manufacture of goods in EOU, assessee procured various inputs on payment of duty and availed cenvat credit of duty paid on such goods - The dispute pertains to refund claims made by assessee under Rule 5 of CCR, 2004 - Part of refund claims were allowed and rest rejected - The rejection was on the ground that certain inputs were procured by assessee on payment of duty, when the same goods were covered under Notfn 22/2003 and have been procured without payment of any duty - The concurrent finding of both the authorities below is that cenvat credits are irregular and hence the refund of such credits under Rule 5 of Cenvat Credit Rule will not be admissible - A perusal of the impugned orders reveal that the lower authority has also discussed the merits of case and has referred to the provisions of Section 5A as well as CBEC Circular dated 26.11.2010 - This is sufficient to conclude that lower authority has also touched upon the merits of case and hence the assessee will be entitled to raise challenge on merit before the Tribunal - Impugned orders are set aside and appeals allowed: CESTAT
-Appeals allowed: DELHI CESTAT
2018-TIOL-2741-CESTAT-KOL
Achintya Sarkar Vs CCE
Cus - The Revenue investigated a consignment of readymade garments imported by the assessee - It was found that the quantity & description was mis-declared - Duty demand was raised and goods were seized alongwith penalty u/s 111(l) (m) & 112 of Customs Act, 1962.
Held: In the present case the ingredients of section 112 have not been met which are doing something that would render the imported goods liable for confiscation under Section 111 of the Customs Act, 1962, abets in doing certain act or omit to do certain acts causing confiscation and thirdly, acquiring possession of or is in any way concerned in carrying, removing, depositing concealing etc. with any goods which he knows or has reason to believe that same are liable for confiscation - Moreover, there is no evidence which indicate in any way, about willful involvement of the assessee in mis declaration of consignment - The consignment has been handled in normal course without any conscious knowledge or connivance regarding mis-declaration of quantities - Hence, the order under challenge is set aside and penalty is deleted: CESTAT (para 2, 5, 6)
- Appeals Allowed: KOLKATA CESTAT
2018-TIOL-2740-CESTAT-DEL
Rajhans Fertilizers Ltd Vs CCE & ST
Cus - The dispute is regarding import of certain pesticides by assessee - The goods were cleared by customs after payment of duty but subsequently investigation was undertaken against assessee on the allegation of import of prohibited goods - The issue to be decided is whether the goods imported are liable for confiscation under Section 111(o) of Customs Act, 1962 - Assessee's registration certificate was not valid at the time of import - Further the goods have been imported from China as against the designated source in UK - The import has also been done through a port which is not notified for permissible imports - In view of the facts, it is established that the import of pesticides made by assessee is in contravention of conditions specified under the Insecticides Act/Rules for import of such goods - Consequently, the imported goods are liable for confiscation in terms of Section 111 (o) of Customs Act, 1962 - The goods should not be allowed to be redeemed - But the lower authority may consider request if any made, for re-export of the goods on payment of redemption fine of Rs. 5 Lakhs - Section 112 provides for imposition of penalty for improper importation of goods upto an amount not exceeding the value of the goods or Rs. 5000/- whichever is greater - The value of goods as assessed in bill of entry is Rs. 19.4 Lakh - Consequently, the penalty imposed is beyond the statutory limit, same is reduced from Rs. 25 Lakh to Rs. 15 Lakh: CESTAT
Appeal partly allowed: DELHI CESTAT
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