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 the above provisions, this court is of the view that impugned order dated 10th January, 2012 passed by the Tribunal deserves to be modified to the extent the petitioner has been directed to deposit the entire amount of the penalties under sections 76 and 78 of the Act.
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 forwarding operation in any manner to any other person and includes a consignment agent. Thus, though the definition of Clearing and Forwarding Agent is quite wide, essentially what is a taxable service is a service rendered by a Clearing and Forwarding Agent to a client in relation to clearing and forwarding operation.
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 case, the assessees are handed over cash in the form of Indian currency at the recipient branch, which issues instructions to the delivery branch, which, in turn, makes payment from the corpus available with it.
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 judgment dated 22.11.2004 of Tribunal, it was specifically referred in para 2 that the appeal filed by the Commissioner, Central Excise in the case of CCE v. Kicha Sugar Co. Ltd. was dismissed by Hon’ble Supreme Court on 20.2.2004.
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 objections and the Assessing Officer was bound to dispose of the same by passing a speaking order. It was further held in the said case that as the reasons had been disclosed, the Assessing Officer had to dispose of the objections, if filed, by passing a speaking order before proceeding with the assessment
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 services is enabled to apply the technology.
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 investigation of the case on the line of investigation as CIT wants.
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.
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 parties. In the circumstances this Court is unable to come to the conclusion at this stage that the defence of the Respondent is sham, false or mala fide. If indeed there is an arbitration agreement between the parties there is no reason as to why it cannot avail of that remedy and must necessarily seek the remedy of winding up.
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 of the aforenoted persons and thereafter the death of Gayatri Devi on 20-9-2009 pursuant to her Will dated 10-5-2009, the shareholding then devolved upon the petitioner group i.e. D and L who admittedly had a succession certificate from a competent Court of law recognizing them as holders of the aforenoted shares of the original holder Jagat Singh. In terms of section 381 of the Indian Succession Act, 1965, this evidence was conclusive for the transmission of shares of the companies in favour of the petitioner group.
