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HIGH COURT JUDGMENTS 2014

AIT-2014-97-HC
M/s. Larsen and Toubro Ltd. Vs. CIT, Mumbai

The Revenue officers must realize that just like other powers a executive power conferred in them is in the nature of a Trust. They hold office as trustees of the public at large. They deal with public revenue and public money and that cannot be wasted in such frivolous litigation. We, therefore, dismiss these appeals with costs quantified at Rs.1,00,000/each.

AIT-2014-98-HC
Impact Containers Pvt. Ltd. Vs. CIT, Mumbai

Deemed Dividend-the provisions of Section 2(22)(e) of the Income Tax Act,1961 cannot be invoked as the assessee company was not a shareholder in the lending company- so long as the Tribunal in the matters and the Appeals which are brought before us holds that the assessee company before it was not a shareholder in any of the entities which have advanced and lent sums, then, the addition is required to be deleted and following the judgment in Universal Medicare(supra) of this Court. Such a view taken in the present case by the Tribunal, therefore, cannot be termed as perverse or vitiated by any error of law apparent on the face of record

AIT-2014-99-HC
Zaheer Mauritius Vs. DIT (International Taxation), New Delhi

AAR held that the entire gains on the sale of equity shares and Compulsorily Convertible Debentures (CCDs) held by the petitioner are not exempt from income tax in India by virtue of the DTAA with Mauritius and that the gains arising on the sale of CCDs are interest within the meaning of Section 2(28A) of the Income Tax Act, 1961 and Article 11 of the DTAC and are taxable as such. - there is sufficient commercial reason for the petitioner to have routed its investment in the real estate project through equity and CCDs. The pre-mature exit options as recorded in the SHA and the minimum return assumed by Vatika on its investment are clearly commercial agreements between the parties. These by itself do not change the legal nature of the transaction entered into between the parties. The terms of the arrangements between Vatika and the petitioner reveal that the JV was a genuine commercial venture, in which both partners had management rights. The call and put options were defined commercial options capable of being elected by the parties. In our opinion, there is, thus, no reason to ignore the legal nature of the instrument of a Compulsorily Convertible Debenture or to lift the corporate veil to treat the JV Company and Vatika as a single entity.

AIT-2014-100-HC
Sandvik Asia Ltd. Vs. CIT, Pune

Whether the Tribunal erred in holding that the assessee was not entitled to deduction of interest paid on the fixed deposits under Section 80V of the Act in computing its total income? - Whether  the Tribunal ought to have held that the interest paid on the fixed deposits was an allowable deduction u/s 80V of the Act?

AIT-2014-101-HC
Travelite (India) Vs. UOI and Ors.

Service Tax: CBEC, under the power vested in it by Section 37B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 issues these circulars as instructions with respect to the levy of service tax. Consequently, such circulars cannot possibly override the statute, or be contrary to the statute. The impugned circular seeks to put in place a mechanism for audit and scrutiny of documents with the objective of safeguarding the interests of the Revenue, in furtherance of the amendments made in the Service Tax Rules, as indicated in paragraph 7 of the circular. Since the parent statute in this regard, the Finance Act, 1994 itself does not authorise a general audit of the type envisioned by the impugned Rule 5A(2), and furthermore only stipulates that a special audit can be undertaken if the circumstances outlined in Section 72A are fulfilled, this Court finds that the impugned CBEC circular is not only an attempt to widen the scope of the law impermissibly but also is patently contrary to the statute. The impugned circular, to the extent it provides clarifications on a Rule 5A(2) audit, is hereby quashed; consequently, the impugned letter is quashed and set aside

AIT-2014-103-HC
Tip Top Typography Vs. CIT, Mumbai

(i) Whether Tribunal was right in holding that the fair rental value specified in section 23(1)(a) is the municipal value or actual rent received whichever is higher and not the annual letting value on the basis of comparable instances as adopted by the Assessing Officer, though the property under consideration was not covered by the Rent Control Act?- (ii) Whether Tribunal was right in remitting the matter back to the file of the Assessing Officer with direction to verify the rateable value fixed by the Municipal Authorities

AIT-2014-104-HC
Sumit Devendra Rajani Vs. ACIT, Ahmedabad

the petitioner-assessee deductee is entitled to credit of the tax deducted at source with respect to amount of TDS for which Form No.16A issued by the employer deductor – M/s. Amar Remedies Limited has been produced and consequently department is directed to give credit of tax deducted at source to the petitioner-assessee – deductee to the extent form no.16 A issued by the deductor have been issued. Consequently, the impugned demand notice dated 6.1.2012 is quashed and set aside. However, it is clarified and observed that if the department is of the opinion deductor has not deposited the said amount of tax deducted at source, it will always been open for the department to recover the same from the deductor

AIT-2014-105-HC
UltraTech Cement Ltd.
Vs. CCE, Raipur

Service Tax: Credit of Service Tax paid on Outward Freight- In this case, the Tribunal has held that in case where the excise duty is charged on the specified rate, then the place of removal is the gate of the factory. It has been held as presumption of law. - There is no provision in the Act or in the Rules or in any circular issued - by the Board of Central Excise and Customs, New Delhi (the Board) to hold that in case the duty is charged on the specified rate, then the place of removal will be factory gate.

AIT-2014-106-HC
M/s Hindustan Coca Cola Beverage Pvt. Ltd. Vs. CCE, Meerut

Service Tax: Credit is admissible on bus transportation service utilised for transporting the staff to the factory and back and advertising expenses incurred for sales promotion of the final products.

AIT-2014-107-HC
Dynamic Industries Ltd. Vs. CST, Ahmedabad

Service Tax: Credit of Service tax paid on Customs House Agents Services, Shipping Agents and Container Services is admissible but credit on Services of Overseas Commission is not admissible to the manufacturer as “input Service Tax credit”.

AIT-2014-108-HC
Copal Research Limited Vs. DIT  (International Tax), New Delhi

the contention of the Revenue that the transaction as presently structured has been done only for the purposes of avoiding tax and as an alternative to sale of shares by shareholders of Copal-Jersey (which would not be as tax friendly) is not sustainable as the transaction structured in the manner as suggested by the Revenue i.e. sale of shares of Copal-Jersey alone, would not achieve the same commercial results and thus, could not be considered as a real transaction which has been structured differently to avoid an incidence of tax

AIT-2014-111-HC
M/s H.M. Singh And Co. Vs. CCE, E & ST, Allahabad

Service Tax: the Tribunal/Commissioner (Appeals) and the adjudicating officer were not justified in imposing penalty under sections 77 and 78 of the Finance Act, 1994 upon the appellant despite the fact that the entire tax liability as well as interest was deposited by the appellant before the passing of the order in original dated 24 October 2011. -  the conduct of the appellant in paying the entire amount of service tax dues together with interest even before the order of adjudication was passed is a factor which must weigh in the balance. The fact that the service tax was deposited even before the order of adjudication was passed was taken note of by the Assistant Commissioner in the order dated 24 November 2011. In these circumstances, we are of the view that no case for the imposition of a penalty was made out.

AIT-2014-112-HC
M/s. J.P. Transformers Vs. CC & CE, Allahabad

Service Tax: Whether the CESTAT has erred in holding that Service tax is not required to be paid on goods used in the repairing process on which Excise duty and VAT has been paid on the value of the said goods, ignoring the fact that as per the contract the respondents were under an obligation to replace the damaged parts and to maintain the transformers in a proper working condition.

AIT-2014-117-HC
Hindustan Motors Ltd. Vs. CCE, Puducherry

Service Tax: Whether or not the show cause notice issued under Section 73 includes person falling under Section 71A in view of the Supreme Court laying down the law in the cases of Gujarat Ambuja Cements Ltd. v. Union of India   and Commissioner of Central Excise, Meerut-II v. L.H.Sugar Factories Ltd.

AIT-2014-119-HC
M/s. Fosroc Chemicals (India) Pvt. Ltd. Vs. CCE & ST, (LTU), Bangalore

Whether the Third amendment of 2008 to the Cenvat Credit Rules, 2004, extending the benefit of exemption from reversal of Cenvat credit on inputs used for manufacture in case of excisable goods, removed without payment of duty which are either cleared to a unit in a special economic zone or to a developer of a special economic zone for their authorized operation, is to be construed as prospective in operation or retrospective?

AIT-2014-122-HC
N
ew Holland Tractors (India) Private Limited Vs. CIT, Delhi

whether entire license fee of Rs.15,68,50,000/- received or paid under the agreement dated 14th July, 1995 is taxable in the year of receipt or it should be spread over three years  - The present case is not of concealment of income, but furnishing of inaccurate particulars for assessment year 1996-97, as the entire receipt was not declared and accounted for in the return of income of the said assessment year. Rather, it was declared in the returns of the subsequent assessment years.

AIT-2014-123-HC
M/s Kothari Petrochemicals Ltd. Vs.
Union of India

Service Tax: The impugned show cause notice actually has the effect of destroying the very exemption notification. A careful look at the ad hoc exemption order bearing No.23/3-95-CX dated 24.03.1995 issued by the Under Secretary to the Government of India, Ministry of Finance, Department of Revenue would show that the Government itself was aware of the supply by the 5th Respondent of Polyisobutylene enriched LPG to the petitioner through the pipeline. The petitioner extracts Polyisobutylene and returns the remnant after subjecting it to a process. The exemption Notification as originally issued on 17.07.1989, was actually rescinded by another Notification dated 01.03.1994, when Modvat was extended to petroleum products including LPG. Therefore, when companies like the petitioner made representations, the Government of India decided to restore the exemption by issuing a Notification No.116/94-CE dated 24.06.1994. But during the period from the date of withdrawal of exemption (1.3.1994) and the date of restoration of exemption (23.06.1994), the petitioner was made to pay the full incidence of Excise Duty.  Therefore, the Government of India passed an order dated 24.03.1995, directing refund of the Duty paid during the said period.

AIT-2014-124-HC
Tata Metaliks Ltd. Vs. CIT, Kolkata

Whether, on a true and proper interpretation of the provisions of Sections 139 and 143 and other relevant provisions of the Income Tax Act, 1961, the Tribunal was justified in law in holding that issue of the intimation under Section 143(1) for the assessment year 1999-2000 on August 08, 2000 amounted to completion of assessment within the meaning of section 139(5) disabling the appellant from filing a revised return and that the revised return filed on March 31, 2001 was belated and invalid?

AIT-2014-126-HC
M/s Kohinoor Biscuits Products Vs. CCE, Allahabad

Service Tax: Tribunal was justified in denying the cenvat credit of service tax paid and freight paid by M/s. Parle on inward and outward transportation (from the Appellants' factory to depots of M/s. Parle) on the ground that depots of M/s Parle cannot be the 'place of removal' and that freight charges were not borne by the Appellants but M/s. Parle.

AIT-2014-127-HC
Alfa Laval (India) Ltd. Vs. Union of India and others

Service Tax: the Petitioner, at the time of export of the goods, having claimed/granted drawback at the All Industry Rate under Rule 3 of the Drawback Rules, is entitled to make an application seeking determination of the Brand Rate of drawback in terms of Rule 7 thereof and claim the differential amount.

AIT-2014-128-HC
Vodafone India Services Pvt. Ltd. Vs.
Union of India

neither the capital receipts received by the Petitioner on issue of equity shares to its holding company, a non-resident entity, nor the alleged short-fall between the so called fair market price of its equity shares and the issue price of the equity shares can be considered as income within the meaning of the expression as defined under the Act. - issue of shares at a premium by the Petitioner to its non-resident holding company does not give rise to any income from an admitted International Transaction. Thus, no occasion to apply Chapter X of the Act can arise in such a case.

AIT-2014-130-HC
Lucent Technologies (P) Ltd. Vs. CIT,
Lucknow

Full Bench: In case, where the case is remanded back by the appellate authority to the assessing officer either under Section 9 or Section 10 of the U.P. Trade Tax Act after setting aside the assessment order without any specific direction to refund the amount, whether it is obligatory on the part of the assessing officer to refund the amount and to pay the interest in case, if the amount is not refunded within the specific period .

AIT-2014-131-HC
M/s Voest Alpine A.G. Vs. CIT, Delhi

The need to distinguish these two types of payments, i.e. payments for the supply of know-how and payments for the provision of services, sometimes gives rise to practical difficulties. The following criteria are relevant for the purpose of making that distinction: - Contracts for the supply of know-how concern information of the kind described in paragraph 11 that already exists or concern the supply of that type of information after its development or creation and include specific provisions concerning the confidentiality of that information.

AIT-2014-132-HC
Busy Bee Vs. CCE,
Coimbatore

Service Tax: the assessee has stated that they were under the impression that the service rendered by them will not be exigible to service tax.  On an earlier occasion, the assessee registered and paid service tax on a non taxable service and they did not even seek for refund of the amount.  The bona fide confusion in the mind of the assessee as to which service is taxable or non-taxable is apparent and that justifies the plea of failure to pay service tax. This reasoning pari passu applies to non registration of said service rendered by them.  Therefore, the demand of penalty under Sections 76 and Section 77 of the Finance Act, 1994 is not tenable

AIT-2014-133-HC
Indo Rub Industries Vs. CIT, Delhi

It is the responsibility and duty of the revenue authorities to maintain sanctity and piety of the files and records and to ensure that there is no tampering, removal or effacing of the papers. When lapses of such nature take place, the authorities must and should rule out foul play and ascertain full facts. Guilty should then be taken to task and dealt with in accordance with law and punished. However, de-novo proceedings pursuant to an order under Section 263 of the Act cannot be initiated without proper ascertainment of facts

AIT-2014-134-HC
Man Mohan Kedia Vs. ITO, Kolkata

The underlying principle is that at one point of time litigation must come to an end. It cannot be reopened. A point cannot be re-agitated again just because a person with “legal ingenuinity” thinks that the decision could have been different if certain law points not cited were placed or a certain weight were given to a particular piece of evidence. If one follows the ordinary rules of res-judicata reopening of an issue in a subsequent year or with regard to another assessee may not be barred. But atleast, in taxation cases the revenue is taken as one party for all assessment years and the assesses together taken as the other party. That which is decided between the revenue and one assessee in an assessment year, having permanent effects should not be decided otherwise or treated in any other way by the revenue with regard to any other assessee, so as to maintain consistency and fairness in government action.

AIT-2014-135-HC
Shri Ashok Kumar Tiwari Vs. CC & CE, Allahabad

CESTAT was justified in condoning the delay in filing the appeal before the Commissioner (Appeals), beyond statutory period of six month, including condonable period, by imposing a cost.

AIT-2014-136-HC
Standard Chartered Grindlays Pvt. Ltd. Vs. DDIT (International Taxation), Delhi

the writ petition has to be allowed. First of all, the reasons recorded do not even allege that there has been any failure on the part of the assessee to make a full and true disclosure of the particulars necessary for making the assessment. Secondly, there is, in fact, no non-disclosure inasmuch as the petitioner had made it clear in the computation of income that the rate of tax applicable was 15% in view of the Article 11(2) of the India-Australia DTAA. As per the said Article, the rate of tax more beneficial to the assessee would have to be applied. The said rate of 15% was accepted by the AO, in view of the provisions of the Double Tax Avoidance Treaty.

AIT-2014-139-HC
M/s Hcl Technologies Vs. CCE, Allahabad

Service Tax: CESTAT was justified in holding that the fact of that the input credit in respect of services i.e. subscription paid for International Taxation, Consultancy Service, Medical Group Insurance Services, Outdoor Catering Service, Advertisement Service & Sponsorship Service in the instant case, would be admissible to the party according to the Cenvat Credit Rules, 2004

AIT-2014-140-HC
Vodafone Cellular Limited Vs. CIT, Coimbatore

1.Whether the Tribunal was right in holding that the transaction between the appellant and the distributors of its prepaid SIM cards and recharge coupons was a contract of agency and not on a principal-to-principal basis ?

AIT-2014-141-HC
M/s. Shell India Markets Pvt. Ltd. Vs. ACIT LTU and Ors.

This petition challenges the order dated 30 January 2013 passed by the Transfer Pricing Officer under Section 92CA(3) of the Income Tax Act, 1961  and the Draft Assessment Order dated 28 March 2012 passed by the AO

AIT-2014-143-HC
M/s. Sulzer India Limited Vs. CIT, Mumbai

(a) Whether the Tribunal is justified in not upholding the finding of the Income Tax Authorities below that the deferred sales tax liability is chargeable to tax as business income of the assessee u/s. 41(1) on remission thereof and instead treating the same as exempt from tax as capital receipt being remission of loan liability?

AIT-2014-146-HC
Malik Tanning Industrie Vs. Union of India and Ors.

The petitioners impugn policy circular No.42 (RE-2010)/2009-14 dated 21.10.2011 issued by the DGFT inasmuch as it curtails the benefit available under Focus Product Scheme in respect of “Technical Textiles” to only 33 items with retrospective effect from 01.04.2011.

AIT-2014-148-HC
Japan Airlines International Co. Ltd. Vs. CST, D
elhi

Service Tax: we are inclined to refer the following two questions to a Larger Bench: - (1) Whether the CESTAT in an appeal under Sub-Section (2) and (2A) of Section 86 of the Finance Act, 1994 read with applicable provisions of the Central Excise Act, 1944, can examine and go into the question of application of mind on merits by the Committee of Chief Commissioners or Commissioners?

AIT-2014-149-HC
Avtec Limited Vs. DCIT, Delhi

writ petition is directed against the notice dated 28.03.2013 issued under Section 148 of the Income-tax Act whereby the petitioner’s assessment for the assessment year 2006-07 is sought to be re-opened.

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