"01 February 2013" Archive

If penalty is imposed u/s. 78, Tribunal cannot seek pre-deposit of penalty u/s. 76, as both cannot be levied simultaneously

Ronak Travels Thro Proprietor Anas Patel Vs Union of India (Gujarat High Court)

In the opinion of this court, having regard to the provisions of section 78 of the Act and more particularly the first and the fifth proviso thereto as referred to hereinabove, the Tribunal was not justified in directing the petitioner to deposit the entire amount of penalties in addition to the service tax and interest. In the light of t...

Clearing & forwarding operations are necessary for classification under C&F agent services

Commissioner of Central Excise & Customs Vs Trade Tek Corpn. (Gujarat High Court)

Section 65(105)(j) makes services rendered to a client by a C & F Agent in relation to clearing and forwarding agent in any manner a taxable service. Term 'Clearing and Forwarding Agent' is defined under section 65(25) to mean any person who is engaged in providing any service either directly or indirectly connected with clearing and forw...

Actual transport must for classification as courier agency

Commissioner of Central Excise & Customs Vs Patel Vishnubhai Kantilal & Co. (Gujarat High Court)

On a plain  reading of Clause (33) of Section 65 of the Act, it is apparent that the same envisages actual transportation of time-sensitive documents, goods or articles by a person, who utilises the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles. In the facts of the present c...

Rule 6 not applies to waste like bagasse, press mud, etc. which are not a manufactured product

Balrampur Chini Mills Ltd. Vs Union of India (Allahabad High Court)

The Hon'ble Apex Court while dismissing the Civil Appeal No.2791 of 2005 preferred by the department vide judgment and order dated 21.7.2010, upheld the findings recorded by the Tribunal that reversal of 8% under 57 CC is not applicable as 'Bagassee' is not a final product, but it is a waste. It is worthwhile to mention here that in the j...

In case of reassessment AO is bound to give reasons and dispose of assessee’s objection by passing speaking order

Alappat Jewels Vs Assistant Commissioner of Income-tax (Kerala High Court)

The Apex Court had in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19 had held that the proper course for the assessee, when he received the notice under section 148 was to seek reasons, if he so desired, for the notices. The Assessing Officer was bound to give reasons. On receipt of the reasons, the assessee was entitled to file o...

Fabric design constitutes Fees for Technical Services if design made available for manufacturing garments

Sintex Industries Ltd. Vs Assistant Director of International Tax (ITAT Ahmedabad)

Now, we examine the MOU between India and US. As per this MOU, regarding para 4(b) of Article 12 of India US DTAA, it was provided that there will be no FTS if technology is not made available to the person acquiring the services. It was also specified that technology will be considered "made available" when the person acquiring the servi...

CIT review u/s. 263 not justified If AO exercises due diligence in accepting assessee’s claim

Sudhir Kumar Agarwal Vs Commissioner of Income-tax-II, Agra (ITAT Agra)

On perusal of the A.O.'s order and material on record, we find that the CIT invoked section 263 of the Act because the CIT did not feel satisfy with the conclusion made by the A.O not on account of that the order of the A.O. was erroneous. The CIT invoked section 263 of the Act simply on account that the A.O. did not carry out the investi...

Non-resident French shipping company not to pay tax on business income unless it is having PE in India

Delmas France S.A. Vs Assistant Director of Income-tax (International Taxation) (ITAT Mumbai)

In the absence of any distinguishing feature brought on record by the Revenue, we respectfully following the order of the Tribunal in assessee's own case (supra) hold that the assessee has no PE in India and, hence, not liable to tax and accordingly the grounds taken by the assessee are allowed....

Machinery of winding up should not be allowed to be utilised merely as a means of realizing its debts

PLD International (P.)Ltd. Vs Reebok India Co. (Delhi High Court)

In the absence of any document showing that in fact possession of the premises were handed over to the Respondent in May, 2010 and in light of the stand taken by the Respondent that possession was handed over to it only in December 2010, the said issue raises a disputed question of fact which cannot be decided without evidence led by the ...

Succession certificate issued by court is conclusive evidence for share transmission

Rajkumar Devraj Vs Jai Mahal Hotels (P.) Ltd. (Delhi high Court)

The company was bound by its own articles and could not have taken a plea contrary to what is contained therein. On the death of the original shareholder 'J', in view of his Will dated 23-6-1996 and the subsequent settlement arrived at between his mother and son 'D' and daughter 'L', on 19-2-2009, 1/3rd shareholding of 'G' vested in each ...

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