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HIGH COURT JUDGMENTS 2015

AIT-2015-86-HC
Japan Airlines International Co. Ltd. Vs. CST, Delhi

Larger Bench - Service Tax: 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, cannot examine and go into the question of application of mind on merits by the Committee of Chief Commissioners or Commissioners.

AIT-2015-87-HC
Sai Wardha Power Company Limited Vs. Union of India

Service Tax: By this petition, the petitioner­Sai Wardha Power Company Limited, Warora seeks a direction to the respondent No.2­ Deputy Commissioner, Customs, Central Excise & Service Tax, Chandrapur to forthwith issue the authorization in Form A­2 to the petitioner. A declaration that he petitioner is  entitled to avail the benefit of ab initio exemption from service tax in terms of Notification No.12 of 2013 is also sought

AIT-2015-97-HC
M/s. Pardeep Electricals & Builders Pvt. Ltd. and anr
. Vs. Union of India and ors.

Service Tax: I) Whether the impugned clarification was beyond competence of respondent No.2; - II) Whether respondent No.2 was legally justified in holding that the service tax was leviable on the gross value of the contract irrespective of inclusiveness of the tax factor in the approved rate of a given item.

AIT-2015-102-HC
M/s. DLF Commercial Project Corporation Vs. CIT, New Delhi

the amount received by the assessee towards transfer of development rights could not be treated as sale consideration in the circumstances of the case. - the AO had erroneously added the amounts to the assessee’s income on account of sale of development rights

AIT-2015-108-HC
Ovira Logistics Pvt. Ltd.
Vs. CIT, Mumbai

Service Tax: section 43B does not contemplate liability to pay the service tax before actual receipt of the funds in the account of the assesee. In our view, liability to pay service tax into the treasury will arise only upon the assessee receiving the funds and not otherwise. Accordingly, when services are rendered, the liability to pay the service tax in respect of the consideration payable will arise only upon the receipt of such consideration and not otherwise.

AIT-2015-111-HC
Brew Force Machine Pvt. Ltd. Vs. CCE, Delhi

Full Bench: The question referred to this Full Bench pertains to power of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) to grant or extend stay of recovery of demand beyond 365 days from the date when the stay order was initially passed, notwithstanding that the delay in disposal of the appeal was not attributable to an assessee.

AIT-2015-116-HC
M/s JSL Lifestyle Limited Vs. UOI

The petitioner exported certain goods on payment of duty during September, 2011. It filed the ARE-I Forms within 48 hours from the date of clearance of the goods. The other documents were, however, admittedly, filed more than a year thereafter. The adjudicating authority rejected the claim for rebate on the ground that it was barred by limitation. The appellate authority also dismissed the claim on the same ground.

AIT-2015-123-HC
M/s. The Indian Hume Pipes Co. Ltd.
Vs. CCE, CE,
Tiruchirappalli

Service Tax:  the service rendered by M/s. Indian Hume Pipe Co., Ltd., in laying, jointing, testing and commissioning of PSC Pipes, construction of pumps, civil structures, supply, delivery and commissioning of submersible pump set and turbine pump sets, maintenance etc. is not chargeable to Service Tax

AIT-2015-124-HC
Shri.Naman Hotels Private Ltd
. VS.
Union of India

object of SFIS is to accelerate growth in export of services so as to create a powerful and unique 'Served From India brand,' instantly recognized and respected worldwide.' the object which is sought to be achieved would be only by encouraging

AIT-2015-126-HC
M/s Vodafone Essar South Ltd. Vs. CCE, Meerut

In any case, the three provisos in sub section (2A) of Section 35C of the Act has now been omitted w.e.f. 6.8.2014 and the bar which was upon the Tribunal to grant limited stay orders has now been removed even though the mandate to decide the appeal within three years, as far as possible, still continues to operate. - The omission of the first, second and third proviso to Section 35C(2A) of the Act in effect means that there is no provision for making any further application for extension of stay. The omission of the first, second and third proviso would mean that the appeal filed by an assessee needs to be disposed of within a period of three years and stay orders which have been passed by the Tribunal would continue to remain in force unless it is limited by the Tribunal itself

AIT-2015-127-HC
Vodafone India Ltd.Vs. CCE, Mumbai

Service Tax:  the Appellant was not entitled to claim CENVAT credit of duty paid on towers (in CKD/SKD form), parts of towers, shelters / prefabricated buildings.

AIT-2015-128-HC
M/s. Ganga Foundations Pvt Ltd.Vs. Commissioner Large Taxpayer Unit

Service Tax: in view of the fact that the applicability of Section 35 F of the Finance Act is pending consideration before the Hon'ble Division Bench of this Court, this Court permits the petitioner to file an appeal along with waiver application, within a period of two weeks from the date of receipt of a copy of this order. Since the matter is pending before the Division Bench of this Court, testifying the validity of Section 35-F of the Finance Act, relating to pre-deposit, the appellate authority is directed to receive the appeal along with waiver application filed by the petitioner, which would be subject to the result of the issue pending before the Division Bench

AIT-2015-132-HC
Shri Ram Niwas Verma Vs. Additonal Commissioner of Customs

On a plain reading of the third proviso to Section 127B(1) of the said Act, it is evident that no application for settlement can be made if it relates to goods to which Section 123 applies. Section 123 sub-section (2) specifically provides that the said Section applies to, inter alia, gold. It is, therefore, clear that when the two provisions are read together, no application under Section 127B(1) can be made in relation to gold.

AIT-2015-133-HC
Grihalakshmi Vision Vs.
Additional Commissioner of Income Tax, Kozhikode

though it is the admitted case that amounts were received from partners and other sister concerns of the assessee and were repaid, there is no material whatsoever to infer that these receipts were anything other than loans or deposits. There is no law that every receipt from a partner or a sister concern cannot, in all circumstances, be treated as a loan or deposit. On the other hand, the nature of the receipt would depend upon the agreement between the parties and the evidence that is produced. As we have already stated, there is no material whatsoever to accept the case of the assessee that these are loan or deposit. In such circumstances, the findings of the Assessing Officer confirmed by the Appellate Commissioner and the Tribunal that it was a loan or deposit that was received by the assessee also has to be upheld and we do so.

AIT-2015-134-HC
M/s Ericsson Communications Ltd.Vs. DIT, Delhi

The controversy in the present appeals relates to the obligation of the Assessee to deduct tax at source (hereafter ‘TAS’) in respect of the amount of Rs.2,24,96,669/- credited to the account of Telefonaktiebolaget L.M. Ericsson, Sweden (hereafter ‘TLME’) in the books of the Assessee. The said amount was credited on account of royalty payable; however, the said entry was subsequently reversed, as according to the Assessee, the payment of royalty to TLME was not permissible as per the Industrial policy in force at the material time. Admittedly, no part of the amount in question was ever paid by the Assessee to TLME. According to the Revenue, the fact that such amount had been credited in the books by the Assessee, itself gave rise to an obligation for the Assessee to deduct TAS on such amount as the same represented the accrual of income. This is stoutly disputed by the Assessee. The Assessee contends that in the given facts, no income chargeable to tax accrued in the hands of TLME and, consequently, there was no default on the part of the Assessee to not deduct TAS.

AIT-2015-137-HC
V.S. Dempo and Company Pvt. Ltd.Vs. CIT

Whether while dealing with the allowability of expenditure under Section 40(a)(i) of the Act, the status of a person making the expenditure has to be a non-resident before the provision to Section 172 of the Act can be invoked?-matter goes to Larger Bench of HC

AIT-2015-138-HC
N.V. Marketing Pvt. Ltd.
Vs. Union of India & Anr.

Service Tax:  In this writ petition there is a challenge to the Explanation to clause (ii) of Section 65(19) of the Finance Act, 1994 as being ultra vires the Constitution of India and being beyond the legislative competence of Parliament and, therefore, being violative of Article 246 and 265 of the Constitution. The point taken by the petitioner is that Section 65(105)(zzzzn) which is in pari materia to the said explanation has been struck down as being ultra vires the Constitution of India.

AIT-2015-141-HC
Mitchell Drilling International Pvt. Ltd. Vs. DIT, Delhi

Service Tax:  the amount of service tax collected by the Assessee from its various clients is not to be included in gross receipt while computing its income under the provisions of section 44BB of the Income Tax Act .

AIT-2015-150-HC
M/s Future Gaming & Hotel Services (Private) Limited Vs. Union of India

Service Tax:  The Petitioners in buying and selling the lottery tickets is not rendering service to the State and, therefore, their activity does not fall within the meaning of ‘service’ as provided under Clauses (31A) and (44) of Section 65B and, therefore, outside the purview of Explanation 2 to the said Section;In any case, since by the Explanation the scope of Section 66D which is the main provision which is sought to be expanded, it would be ultra vires the Finance Act, 1994 and is accordingly struck down

AIT-2015-151-HC
M/s Uni Cast Pvt. Ltd. Vs. CCE, Meerut

credit would be given on an invoice bill, which indicates payment of duty on such inputs. In the instant case, the invoice bill was produced, which evidenced payment of excise duty on the inputs received by the applicant. The said bill was endorsed by the manufacturer. The mere fact that the certificate issued by the manufacturer did not give the details of payment of duty was immaterial. The amended Rules provided payment of duty and inputs to be indicated in the invoice, which existed as per the invoice supplied by the supplier. The fact that the invoice did not indicate the name of the appellant was only a procedural lapse, which was rectified by the endorsement made by the manufacturer in favour of the applicant. Such endorsement made cannot make the document invalid and, consequently, we are of the opinion that endorsement made by the manufacturer in favour of the applicant on the bills raised by the supplier does not make the invoice invalid and the applicant is entitled to avail MODVAT credit.

AIT-2015-152-HC
Turner Broadcasting Systems Asia Pacific Inc. Vs. DDIT

no fresh information or material has been referred to in the reasons recorded for seeking to reopen the assessment. The material that is referred to is the very same material that was already before the Assessing Officer at the time of framing of the assessment under Section 143 (3) of the Act and even the reasons record that “from the perusal of the assessment record, it is observed that‟. This clearly shows that the assessing officer has sought to re-appreciate the material that was already there at the time when the assessment was framed under Section 143 (3). Thus, as seen from above, it is clearly a case of change of opinion, which is clearly not permissible

AIT-2015-155-HC
M/s Goodyear India Ltd. Vs. CCE, Delhi

AED (GSI) Credit accrued prior to 1.4.2000 could not be used for payment of BED and SED. However, sub-section (4) of Section 88 thereof provided for recovery of AED (GSI) Credit prior to 1.4.2000 which was availed for payment of BED and SED.

AIT-2015-157-HC
M/s Pfizer Products India Pvt. Ltd. VS. CC

interest would be payable if the amount is not refunded within three months from the date of the application. The rate of interest would vary from 5% to 30% per annum, as may be fixed by the Central Government by Notification from time to time. Explanation immediately after the proviso in the said Section only means that the liability to pay the amount would arise after the order of refund of the amount is finalized, either in appeal or by the Commissioner, Tribunal or the Court, but such liability would be from three months after the date of application. The same cannot be interpreted that the liability to pay interest would be from the date of the order of the Tribunal or the Court, which may be passed in appeal.

AIT-2015-165-HC
Jet LLite (India) Ltd. Vs. CIT, Delhi

89. Question (i) regarding additions under Section 68 of the Act is answered partly in favour of the Revenue by setting aside the orders of the CIT (A) and ITAT deleting the addition made by the AO of the sum corresponding to 65185 shareholders and directing the corresponding addition of the said sum to the income of the Assessee for AY 1996-97. However, the orders of the CIT (A) as confirmed by the ITAT deleting the addition made in respect of the amount brought in by 50 + 17 shareholders and remanding the matter to the AO in respect of 8 persons and some part of 25 persons who were not traceable and whose addresses had not been furnished is upheld.

AIT-2015-166-HC
Johnson Matthey India Pvt. Ltd.  Vs. DCIT, Delhi

(i) Whether the Tribunal erred in replacing the PLI adopted by the Assessee to determine the ALP with another PLI despite not providing any cogent reasons for the same and in fact providing contradictory remarks while rejecting Return on Capital Employed (“ROCE”) as the PLI?

AIT-2015-172-HC
M/s. Karan Agencies Vs. CCE and ST, Kolhapur

Service Tax:  the arrangement or deal in the present case is of such nature that M/s. KSM's distillery unit is taken over for conducting and managing by the Assessee. The Assessee is therefore responsible for any profits being generated or losses sustained. The nature of the transaction therefore would not fall within the meaning of support services for business or commerce.

AIT-2015-179-HC
Tops Security Ltd. Vs. Principal Commissioner of Service Tax, Delhi

Service Tax:  CESTAT could not have, in terms of the third proviso to Section 78 (1) of the Finance Act, 1994 (as it stood prior to its substitution by the Finance Act 2015) read with Section 83 thereof, extend the time for the Respondent to pay the reduced penalty within 30 days from the date of the order of the CESTAT

AIT-2015-182-HC
M/s Ram Sewak Madan Mohan Vs. Commissioner, Commercial Taxes, U.P.

Full Bench: the judgments of the two Division Benches of this Court in Dharma Rice Mill (supra) and Kumar Rice Mills (supra), insofar as they hold that the remedy of a revision against an order of assessment under the UP Trade Tax Act provided to the Commissioner under Section 10-B survives the repeal lay down the correct principle of law. The remedy is saved by virtue of the provisions of Section 81 of the Uttar Pradesh Value Added Tax Act 2008 read with Section 6 of the Uttar Pradesh General Clauses Act 1904. 

AIT-2015-183-HC
HCL Infosystems Ltd. Vs. CIT

the receipt of Rs. 6080.95 lakhs by the Assessee as a result of the termination of the JVA during AY 1998-99 was a capital receipt but in light of Section 55 (2) (a) of the Act as it stood at the relevant time, the said amount cannot be brought to capital gains tax. At the relevant time, there was no provision in regard to determining the cost of acquisition of the above intangible assets for the purposes of computing capital gains tax.

AIT-2015-184-HC
Bharti Overseas Pvt. Ltd. Vs. CIT, Delhi

whether the ITAT was correct in affirming the order of the Commissioner of Income Tax (A) which had confined the disallowance under Section 14A of the Act to Rs. 30,26,552 for the AY in question?

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