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2020-TIOL-NEWS-043| Thursday February 20, 2020 |
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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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PR CIT Vs Sanidhya
Whether when the partnership deed proposes no interest on partners' capital, any disallowance can be made by the Revenue - NO: HC
- Revenue's appeal dissmissed: GUJARAT HIGH COURT
PR CIT Vs Vodafone Shared Services Ltd
Whether interest paid on borrowings for acquisition of capital assets deserves to be allowed u/s 36(1)(iii) regardless of the fact that capital assets acquired were not put to use in the relevant FY - YES: HC
- Revenue's appeal partly allowed: GUJARAT HIGH COURT
2020-TIOL-267-ITAT-AHM
Adani Properties Pvt Ltd Vs DCIT
Whether CIT(A)'s order allowing partial relief in respect of disallowance u/s 14A, warrants any interference with, where the same is based on findings rendered in the assessee's own case for a previous AY - NO: ITAT
Whether disallowance u/s 36(1)(va) of employee's contribution to PF & ESI, is sustainable, where such payment is made after the due date prescribed in the Explanation to Section 36(1)(va) - NO: ITAT
- Assessee's appeal dismissed: AHMEDABAD ITAT
Riddhish B Trivedi Vs CIT
Whether deduction available u/s 54B in respect of LTCG on sale of land used for agricultural purpose is also available in case of fallow land - NO: ITAT
- Assessee's appeal dismissed: AHMEDABAD ITAT
Sami Direct Marketing Pvt Ltd Vs ACIT
Whether the Tribunal can admit any fresh evidence which does not satisfy the set procedure of first certifying that such evidence had also been furnished before the lower authorities - NO: ITAT
Whether an assault against the CIT(A)'s order will succeed, where fresh evidence is submitted before the Tribunal in this regard, but if such evidence is not furnished before the AO or before the CIT(A) - NO: ITAT
- Assessee's appeal dismissed: BANGALORE ITAT
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INDIRECT TAX |
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SERVICE TAX
2020-TIOL-322-CESTAT-CHD
Sant Roadlines Vs CCE & ST
ST - The assessee is a proprietorship which owns trucks - The same are provided on hire basis to variopus logistics services for transportation of goods from one place to another - Remuneration is received on per kilometre basis - The assessee entered into various agreements with different parties, as per which the main service to be provided by the assessee is transportation of goods on behalf of the service recipient from one place to another for which the assessee is paid on per Km basis and the assessee did not issue any Goods Receipt for transportation of goods - The Revenue opined that such activity undertaken by the assessee is classifiable under Supply of Tangible Goods Service - Pursuant to investigation, an SCN was issued proposing to demand service tax by invoking extended period of limitation - On adjudication, the demands were confirmed - Hence the present appeal.
Held: Considering the definition u/s 65(105)(zzzzj) of the Finance Act 1994, it is seen that the right of possession of the vehicle remains in control of the assessee and so it is liable to pay service tax under this category - But it is also seen that the assessee was under a bona fide belief that it was engaged in activity of transportation of goods on behalf of the service recipient and that such service was not taxabe in hands of the service recipient - Such understanding of the assessee has been evidenced by various agreements between the assessee and the service recipient, which clearly shows that the main activity of the assessee is transportation of goods on behalf of the service recipient - Hence the assessee was under bona fide belief of being not liable to pay service tax on the activity undertaken by them - Therefore, the extended period of limitation is not invokable - As the whole demand is raised by invoking extended limitation, the entire demand is barred by limitation - No penalty is imposable as well: CESTAT
- Assessee's appeal allowed: CHANDIGARH CESTAT
CENTRAL EXCISE
2020-TIOL-320-CESTAT-HYD
JSW Cements Ltd Vs CC, CE & ST
CX - Appellant procured various steel items to be used for construction of technological foundation and structures of the capital goods such as pre-heater tower, raw mill house, storage tanks, clinker silo etc - appellant also procured various services such as construction services, banking and financial services, consultancy service, excavation services, rail connection services, manpower recruitment services etc and availed CENVAT credit on all these items and services - SCN was issued for denying credit availed on the items [during the period September 2008 to June 2009] by relying upon the Larger Bench decision in Vandana Global - 2010-TIOL-624-CESTAT-DEL-LB on the ground that these items do not qualify as inputs/capital goods as defined in CCR - credit on services was also sought to be denied on the ground that the services have no nexus with the manufacturing activity and that the services have been availed at the factory but the invoices have been raised with respect to their office - demand confirmed and, therefore, assessee is before CESTAT.
Held:
+ Decision of the Larger Bench of Tribunal relied by the adjudicating authority has been reversed by the Chattisgarh High Court - 2017-TIOL-2853-HC-CHATTISGARH-CX, therefore, it holds no force - credit cannot be denied based on the LB decision - moreover, all these items have been used for fabrication of capital goods and structures thereof without which the appellant cannot proceed for the activity of manufacturing - appellant is entitled to avail CENVAT credit: CESTAT [para 8]
+ Insofar as denial of credit on the Input services on the ground that the same have been received in the factory whereas invoices are in the name of their Nandyal office, it is not the case of the revenue that the appellant has not used the services in question in the business of manufacturing of goods - credit is, therefore, admissible - as regards invoices which are having certain corrections made therein, the same cannot be a reason to deny CENVAT credit: CESTAT [para 9]
- Appeals allowed: HYDERABAD CESTAT
CUSTOMS
2020-TIOL-409-HC-MAD-CUS
HLG Trading Vs CC
Cus - The assessee-company had claimed refund of SAD in terms of Notfn No 102/2007-Cus - The same was accepted on adjudication - However, such findings were overturned by the Commr.(A) - Hence the present writ.
Held: The counsel for the Revenue pointed out that the issue of refund of SAD was considered by the Tribunal, which settled the issue in favor of the assessee - Such order had been accepted by the Department - Hence the present petitions merit being allowed - The assessee may seek refund of the SAD by way of applications filed within 2 weeks from date of this order: HC
- Writ petitions allowed: MADRAS HIGH COURT
2020-TIOL-319-CESTAT-KOL
CC Vs Md Monjurul Haque Laskar
Cus - On the basis of report of Arecanut Research and Development Foundation (ARDF), Mangalore, taking the view that the Arecanuts were of foreign origin nad illegally imported into India, the officers of DRI seized the betel nuts along with the truck carrying the goods - SCN inter alia proposed confiscation of the truck as also imposition of penalties on various noticees - as the said allegations were upheld by the original adjudicating authority, the appellant went in appeal before the Commissioner(A) who observed that the goods under seizure were not notified u/s 123 of the Customs Act, 1962 and the Department had failed to establish that the goods are smuggled goods; that the representative samples were not drawn properly and, therefore, ordered that the betel nuts may be released for the purpose other than for human consumption with prior information to FSSAI, Plant Quarantine or any other agencies who enforce the food laws - Revenue is in appeal before CESTAT.
Held: It is observed that the Revenue's entire reliance is on the basis of ARDF Certificate - As it is reported that ARDF is not an accredited Laboratory, no legal liability can flow from the report of such institution - As the Revenue could not prove that the goods were smuggled or produce any corroborative evidence in support of their case, order of Commissioner(A) is sustained and appeal is rejected: CESTAT [para 8, 9]
- Appeal rejected: KOLKATA CESTAT
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