The Tribunal ignored that the role of the assessee with regard to the goods supplied by supplier was only that of a bailee and so the value of goods cannot constitute income in its hands. The entire contention of the revenue rested on the wrong premise that the payment had been made by the owner NSTL, a fact which was totally against the agreed terms of the contract between the assessee and NSTL.
In the instant case, the expenditure in respect of CMC charges was incurred by the assessee in discharging its primary responsibility as a CHA. In view of the clear provisions of rule 5 of the Service-tax (Determination of value) Rules, 2006, the CMC charges are to be included in the assessable value of the taxable service provided by the assessee. As regards the issue of time bar, it was found that the assessee never disclosed the fact that CMC charges are recovered from its customers in the ST-3 returns in which the statutory returns were filed by the assessee, wherein there was a separate column in which the assessees had to show the reimbursable expenses. Therefore, there was no merit in contention of assessee in respect of time bar also.
The assessee was registered with the Central Excise Department on its own on 16-6-2005. It was a proprietorship concern and it was required to file the service tax returns quarterly, which it had been filing meticulously with the Department. However, due to non-understanding of the relevant provisions of law, there was some short-payment of service tax during the period from August 2005 to October, 2006. However, when the said short payment was brought to the assessee’s notice in November, 2006 by the Visiting Departmental Officers, the entire amount of service tax was paid.
As per section 37C(l)(a), it was mandatory on the part of the Revenue to serve a copy of the order of Commissioner of Central Excise (Appeals) by registered post with acknowledgment due to the assessee. Admittedly in the present case, a copy of the order has not been sent by registered post. In these circumstances, it could not be said that the requirement of Section 37C has been complied with.
Hon’ble Bombay High Court in the case of Prashant S Joshi (supra) has also noted the omission of section 47(ii) of the Act and insertion of section 45(4) of the Act with effect from 1.4.1988. Considering the entirety of the legal position, it has been affirmed by the Hon’ble High Court that amounts received by the partner on his retirement, are exempt from capital gains tax.
Section 44AB of the Act becomes operative where there is computation of profits and gains of business or profession as a part of total income. In other words, it has no applicability where the assessee is not involved in or has no income from profits and gains from business or profession.
You are well aware that the State Government vide notification cited at Ref.-l inserted rule 45A so as to enable remittance of refund through Electronic Clearing Service (for short ECS). By virtue of this rule the State Government has taken powers to notify the dealers or classes of dealers to whom the remittance of refund shall be made through ECS. Accordingly, a notification cited at Ref.-2 was issued.
Short facts apropos are that assessee engaged in the business of transport of spirit and Molasses had acquired a new wind mill during the previous year. The total cost of the wind mill was Rs. 1,58,00,000/- and it was commissioned on 27.03.2005. Since wind mill was used for less than 180 days, depreciation was claimed at 50% of the normal rate.
Whether Charitable Trusts (CT) are liable to pay ST? Yes. Refer to charging section i.e. Section 66B which reads as follow: 66B. There shall be levied a tax …. provided ….. by one person to another……. Does it mean that CT will have to pay ST on services provided by it? Yes. Section 66D containing Negative List (NL) is not having any specific reference to services provided by CT. Hence, services provided by CT are taxable.
Expenses having been incurred for the IPO through which assessees were also able to sell their shares, the expenses necessarily were, in our opinion, in connection with sale of such shares. Assessees could take advantage of clause (1) of Section 48 of the Act. Assessees had produced evidence in the form of Escrow Account to show that it had received only net amount after incurring the expenses. Assessees also produced Prospectus of IPO which clearly shows that they were obliged to meet pro rata share of IPO expenses. There is no case for the Revenue that any of the assessees claimed more than their share of expenses based on the ratio of shares sold. We are, therefore, of the opinion that the deduction claimed by the assessees for expenses incurred was unjustly disallowed. This disallowance is deleted.
