2019-TIOL-1154-ITAT-INDORE

Ferro Concrete Construction India Pvt Ltd Vs DCIT

Whether AO is permitted to reject books of account u/s 145(3) and estimate profits without any cogent evidence regarding genuineness of expenses - NO: ITAT

- Assessee's appeal partly allowed: INDORE ITAT

Nile Tech Ltd Vs ACIT

Whether rental income earned by taxpayer from leasing out property owned by it is chargeable to tax under the head 'income from house property' u/s 22 of I-T Act - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

Sivagamy Traders Vs ACIT

Whether differences in rate of commission paid to the related & unrelated parties over their turnover, calls for addition u/s 40A(2)(b) - YES: ITAT

- Assessee's appeal partly allowed: CHENNAI ITAT

DCIT Vs Taneja Developers And Infrastructure Ltd

Whether if loose sheets seized during survey belong to the sister concern of the assessee, no substantive addition can be made in hands of assessee - YES : ITAT

Whether if entries found in seized documents are duly recorded in the regular books of account then no addition for unaccounted sales should be made - YES : ITAT

- Revenue's appeal dismissed: DELHI ITAT

DCIT Vs Dindayal Jalan Textile Ltd

Whether AO is permitted to disallow expenditure incurred under various heads without recording any observation as to incorrectness in books of account maintained by the assessee for the relevant F.Y - NO: ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

2019-TIOL-1250-HC-MUM-VAT

Whether Input Tax Credit is not a matter of right but a concession - YES: HC

- Assessee's appeal dismissed : BOMBAY HIGH COURT

2019-TIOL-1249-HC-MUM-VAT

Whether when appeal pertaining to identical matter is pending consideration before the Apex Court, and taxes involved therein stand paid without any claim for interim relief, then such a case merits no writ interference - YES: HC

- Case deferred : BOMBAY HIGH COURT

SERVICE TAX

2019-TIOL-1729-CESTAT-AHM

Patel Dye Chem Agencies Vs CCE & ST

ST - There are three issues involved in this case. The first one is, whether the services of Commission Agent provided to China based Company, for which the assessee received commission which was claimed as export of service; second is, the commission income received in relation to the business of textile processing under Notfn 14/2004-ST and the third is, other commission on which service tax demand of Rs. 84,270/-, admitted and paid along with interest by assessee - As regards the demnd of Rs. 33,176/-, the same was on the BAS i.e. commission received from China based client which is in relation to facilitating the client for supply of goods from India to China - Against such service, the consideration received was in convertible foreign exchange and therefore, the fact that the service provided from India to the client based in China, the consideration received is in convertible foreign exchange, the service is qualified as export service and hence the same is not taxable - As regards the demand of Rs. 89,350/-, undisputedly the commission is related to textile processing business which is clearly exempted by Notfn 14/2004-ST, therefore, the said demand is also not payable - The relief sought is for waiver of penalty imposed under Section 76 and 78 of FA, 1994 - As held by Gujarat High Court in case of Raval Trading Company 2016-TIOL-112-HC-AHM-ST , simultaneous penalty under Section 76 and 78 cannot be imposed - Accordingly, the penalty imposed under Section 76 is set-aside - As regards the penalty imposed under Section 78, both the lower authorities have not extended benefit of option to pay 25% under the proviso to Section 11AC, therefore, in the light of Supreme Court judgment in case of RA Shaikh Paper Mills Pvt. Limited the assessee is entitled for the option to 25% penalty - Accordingly, the penalty is reduced to 25% subject to the condition that entire amount of tax of Rs. 84,270/- along with interest and 25% penalty of said service tax is paid within one month: CESTAT

- Appeal partly allowed: AHMEDABAD CESTAT

CENTRAL EXCISE

2019-TIOL-1726-CESTAT-HYD

Macmohan Pharma Ltd Vs CC, CE & ST

CX - The assessee is a pharmaceutical company availing benefit of SSI exemption and won the tender to supply medicines to Government hospitals as per rate contract awarded by DMER, Government of Maharashtra - The assessee chose to appoint distributors and raise invoices on them who in turn, would raise invoices on DMER as per the rate contract - Evidently, the distributor will not work for free and he needs a margin for his services - The invoices were issued by assessee on their distributors, which has a transaction value - In turn, the distributor sold the medicines to DMER at higher transaction value - The question of normal price under Sec.4 as it stood prior to 2000 does not apply when there is a transaction value - The SCN is entirely based on old Sec.4 which does not apply to the period in question - Therefore, the demand under Sec.11A has to fail on this ground alone - As far as the demand under Sec.11D is concerned, prior to Finance Act, 2008, only such persons who are liable to pay duty had to deposit any amount collected as representing duty - This left persons who were not required to pay excise duty and still collected some amount as excise duty scot free - Such persons could pocket the amounts so collected - This position has been modified in FA, 2008 - Since the entire period is prior to 2008 and the allegation is that the amounts were collected by the distributors of the assessee and not by the assessee themselves as representing excise duty, the demand under Sec.11D does not sustain against the assessee - The demand also does not sustain against the distributors because prior to 2008, persons who are not liable to pay excise duty were not covered by Sec.11D - In conclusion, the entire demand under Sec.11A and Sec.11D along with interest and penalties are set aside and the penalty on Managing Director of the assessee also set aside: CESTAT

- Appeals allowed: HYDERABAD CESTAT

CCE Vs Greenply Industries Ltd

CX - The Revenue's application for withdrawal of appeal merits being allowed as the tax amount involved is lower than the limit of Rs 20 lakhs prescribed in CBIC Instruction F. No. 390/Misc./116/2017-JC dated 11/07/2018: CESTAT

- Revenue's appeal dismissed: KOLKATA CESTAT

2019-TIOL-1724-CESTAT-ALL

Delhi Metro Rail Corporation Vs CCE

CX - The assessee is in appeal against impugned orders wherein the benefit of exemption Notfn 6/2006-CE has been denied - Consequently, demand of duty has been confirmed against M/s. Tata Motors Ltd. and penalties on all the assessees have been imposed - Admittedly, the goods in question have been procured by DMRC in Metro Feeder bus service, therefore, the use of bus is for MRTS project - The sole reason to deny the benefit of exemption notification is the agreement between DMRC and its operators - As per agreement after five years the operator shall become the owner of the bus - In fact, on the basis of record placed, operators have never completed contract and agreements were not rescinded - Consequently, the DMRC remains the owner of buses in question, therefore, on that ground the benefit of exemption notification cannot be denied to the assessee - Another issue raised by Revenue is that the chassis in question are not inventory or equipment or machinery or rolling stock - It is admitted that these bus chassis purchased by DMRC from M/s. Tata are used as feeder bus service to carry passengers from various routes of metro and vice versa are integral part of the Delhi MRTS project and DMRC is the owner of the buses, therefore, DMRC has rightly issued certificate in terms of Notfn 6/2006-CE and M/s.Tata is entitled to avail exemption notification and have rightly cleared chassis in question without payment of duty - No merit found in the impugned orders and no demand is sustainable against M/s.Tata and no penalty is imposable on all the assessees: CESTAT

- Appeals allowed: ALLAHABAD CESTAT

CUSTOMS

2019-TIOL-1723-CESTAT-MAD

RM Purushotham Vs CC

Cus - The dispute concerns the revocation of licence of assessee under CBLR, 2013 - Vide the impugned order, the licence of assessee was revoked and security deposit made by them was ordered to be forfeited under Regulation 20 (7) of CBLR - Following the ratio already laid down in decisions in KMK Shipping and Clearing Pvt. Ltd. 2019-TIOL-274-CESTAT-MAD and Gudwil Maritime Pvt. Ltd. 2018-TIOL-1358-CESTAT-BANG, as the time limits laid down in Regulation 20 of CBLR 2013 have been followed in the breach, the impugned order of revocation and forfeiture of security deposit cannot be sustained and are set aside on this ground alone: CESTAT

- Appeal allowed: CHENNAI CESTAT

2019-TIOL-1722-CESTAT-DEL

Ingram Micro India Pvt Ltd Vs DCC

Cus - The assessee had filed a bill of entry for clearance of various items of network security appliances, power supply and access points - The impugned goods have been classified by assessee under CTH 85176290 and CTH 85044010 - During assessment, licence from Wireless Planning and Coordination Wing (WPC) under Ministry of Communication and Directorate of Telecommunication/product catalogue was asked for and the goods were examined by shed officers under the supervision of DC (import Shed) on 8 September 2009 - It is thereafter that all the items of the said bill of entry were cleared by the authorities except for 6 pieces of one item namely Fortinet Secured Indore Wireless access point - The department was of the opinion that the said item is permitted to be imported against some licence only - The Notfn 07/2015-2020, no doubt has made Radio remote control apparatus to be freely importable but the said notification puts a rider that the apparatus has to be imported against a licence to be issued by WPC - Letter of DGFT is also perused no doubt it has clarified for some items of wireless products alongwith their ITC (HS Codes) to be free, hence, no more required any import licence but the said clarification itself puts a rider that the import of such item may require to comply with certain rules/regulations prescribed by WPC, hence, permission/NOC from the WPC may be required for import of these items - Though vide latest clarification of DGFT, there is a mention that no separate licence is required from WPC Wing but the said clarification being a post-event than the holding of impugned goods, same cannot be given retrospective effect - The assessee though has contended that the item as have been held no more require the WPC licence, as being same as that of the goods, mentioned in letter dated 16 April 2019 the benefit may be extended to the assessee also - Finally in the interest of justice, the samples from the impugned consignment be sent to the Wireless Planning and Coordination Wing of Ministry of Telecommunication - The department shall be giving random four samples to WPC within 15 days of this order - WPC in 15 days thereafter, that is after receiving the said samples, shall give a technical report about the specifications of the impugned goods with a clear finding of the necessity of the WPC licence for the import of said item at the relevant time - The said report shall form the basis for further adjudication by the Original Adjudicating Authority who shall be re-adjudicating the impugned issue based on the said report within a month of receiving the said report - Appeal is allowed by way of remand: CESTAT

- Matter remanded: DELHI CESTAT